Michael McGinley at Dechert LLP

Supreme Court Ends Chevron Deference Among String of Decisions Limiting Agency Power

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the doctrine of Chevron deference but made clear that cases relying on Chevron’s interpretive framework remain good law subject to statutory stare decisis....more

7/11/2024 / Administrative Procedure Act , Chevron Deference , Chevron v NRDC , Constitutional Challenges , Government Agencies , Judicial Authority , Loper Bright Enterprises v Raimondo , National Marine Fisheries Service , Regulatory Authority , SCOTUS , Statutory Interpretation

Supreme Court Curtails SEC In-House Judges on Litigated Civil Penalties

In SEC v. Jarkesy, the Supreme Court held that the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties for securities fraud. The decision limits the SEC’s authority to seek civil...more

7/3/2024 / Administrative Law Judge (ALJ) , Administrative Proceedings , Dodd-Frank , Enforcement Actions , Jury Trial , SCOTUS , SEC v Jarkesy , Securities and Exchange Commission (SEC) , Securities Fraud , Seventh Amendment

SEC’s Private Fund Adviser Rule Vacated by the Fifth Circuit

Yesterday, the United States Court of Appeals for the Fifth Circuit vacated the SEC’s Private Fund Adviser Rule in its entirety. Dechert LLP represented the Chamber of Commerce of the United States of America in filing an...more

6/7/2024 / Chamber of Commerce , En Banc Review , Investment Adviser , Investment Advisers Act of 1940 , Private Funds , SCOTUS , Securities and Exchange Commission (SEC) , Vacated

‘Modify’ Means Modify: Supreme Court Rejects Biden Administration’s Plan to Forgive US$430 Billion in Student Loan Debt

The Supreme Court reaffirmed that agencies may not exercise sweeping powers that would fundamentally revise congressional policies absent clear statutory authorization. The Secretary of Education’s power to “modify” the...more

7/13/2023 / Biden Administration , Coronavirus/COVID-19 , Loan Forgiveness , SCOTUS , Secretary of Education , Student Loans , West Virginia v EPA

Off the Beaten Track? U.S. Supreme Court Holds States May Require Corporations to Consent to Jurisdiction to Conduct Business

On June 27, 2023, a fractured Supreme Court held in Mallory v. Norfolk Southern Railway Co. that a Pennsylvania law requiring out-of-state businesses to consent to the jurisdiction of the Pennsylvania courts as a condition of...more

7/3/2023 / Cause of Action Accrual , Commerce Clause , Consent , Due Process , Fourteenth Amendment , Jurisdiction , Mallory v Norfolk Southern Railway Co , Out-of-State Companies , SCOTUS

Supreme Court Gives Securities Plaintiffs No Slack: Section 11 Requires Tracing Shares to Registration Statement

U.S. Supreme Court resolves circuit split created by Ninth Circuit decision which had held that traceability not required in the context of a direct listing. By requiring traceability, the Supreme Court cabins strict...more

6/6/2023 / Initial Public Offering (IPO) , Investment , Petition for Writ of Certiorari , SCOTUS , Section 11 , Securities Act of 1933 , Securities and Exchange Commission (SEC) , Securities Exchange Act of 1934 , Slack Technologies Inc v Pirani

Don’t Trade on Me: Second Circuit Excludes Confidential Agency Information From the Definition of “Property” in Insider Trading...

A divided panel of the U.S. Court of Appeals for the Second Circuit held, on December 27, 2022, in United States v. Blaszczak (“Blaszczak II”) that an agency’s confidential, pre-decisional information did not count as...more

1/18/2023 / Appeals , Centers for Medicare & Medicaid Services (CMS) , Confidential Information , Fraud , Hedge Funds , Insider Trading , Kelly v United States , SCOTUS , Securities and Exchange Commission (SEC) , Securities Fraud , Wire Fraud

Third Circuit Rejects Use Of “Intended Loss” as Enhancement Under U.S. Sentencing Guidelines

The Third Circuit Court of Appeals ruled yesterday in United States v. Banks1 that under the U.S. Sentencing Guidelines, “loss” means only actual loss and not intended loss. Although the term “loss” is not explicitly...more

12/2/2022 / Appeals , Auer Deference , Federal Sentencing Guidelines , Fraud , Kisor v Wilkie , Legislative Rule , Reasonable Interpretations , SCOTUS , Theft , Wire Fraud

Major Decision for Major Questions: Supreme Court Reins In Federal Regulatory Authority

Introduction - In West Virginia v. EPA, the Supreme Court confirmed a robust “major questions” canon of construction that will restrain administrative agencies’ ability to regulate on issues of “vast economic and...more

7/21/2022 / Air Pollution , Clean Air Act , Clean Power Plan , Climate Change , Commercial Litigation , Discharge of Pollutants , Environmental Policies , Environmental Protection Agency (EPA) , Global Warming , Greenhouse Gas Emissions , Pollution Control , Power Plants , Regulatory Authority , Resource Management , SCOTUS , West Virginia v EPA

Showdown at the Fifth Circuit Corral—Panel Rules SEC Home-Court Proceedings Violate Multiple Constitutional Provisions

The United States Court of Appeals for the Fifth Circuit issued a major decision on May 18, 2022 holding Securities and Exchange Commission (SEC or Commission) administrative adjudications unconstitutional on multiple...more

5/31/2022 / Adjudicatory Process , Administrative Law Judge (ALJ) , Administrative Proceedings , Article II , Constitutional Challenges , Enforcement Actions , Right to a Jury , Securities and Exchange Commission (SEC) , Securities Fraud , Securities Violations , Seventh Amendment

Congress Moves to Combat Use of Forced Labor in Supply Chain

Senators Josh Hawley and Kristen Gillibrand re-introduced new legislation on February 3, 2022, aimed at combatting the use of forced labor in supply chains worldwide. This move comes on the heels of the December 2021 passage,...more

2/17/2022 / Biden Administration , Child Labor , China , Customs and Border Protection , Forced Labor , Foreign Policy , Foreign Relations , Human Rights , Imports , New Legislation , Proposed Legislation , Regulatory Agenda , Slavery , Supply Chain , Uyghur Forced Labor Prevention Act (UFLPA)

Federal Court Rejects DOJ’s Novel and Extraterritorial Effort To Extend FCPA Jurisdiction to Foreign Agents

The United States District Court for the Southern District of Texas recently recognized new constitutional and extraterritorial limits on the FCPA. In an order entered November 10, 2021, the court held that it lacked...more

12/3/2021 / Bribery , Constitutional Challenges , Corruption , Criminal Prosecution , Department of Justice (DOJ) , Due Process , Extraterritoriality Rules , Foreign Agents , Foreign Corrupt Practices Act (FCPA) , Indictments , Jurisdiction , Kickbacks , Money Laundering , Motion to Dismiss , Vagueness , White Collar Crimes

Supreme Court Holds that an FCC Rule Change Was Not “Arbitrary and Capricious” Under the Administrative Procedure Act

The U.S. Supreme Court issued a significant decision regarding the Administrative Procedure Act’s (“APA”) arbitrary-and-capricious standard. In FCC v. Prometheus Radio Project, the Court upheld a decision by the Federal...more

4/5/2021 / Administrative Procedure Act , FCC , FCC v Prometheus Radio Project , Government Agencies , Judicial Review , Media , Regulatory Agencies , SCOTUS , Standard of Review

Key Takeaways From the Supreme Court’s Personal Jurisdiction Decision in Ford Motor Company v. Montana Eighth Judicial District...

Yesterday, the Supreme Court issued an important decision in Ford Motor Company v. Montana Eighth Judicial District Court unanimously affirming the existence of personal jurisdiction over products liability claims by an...more

3/29/2021 / Automotive Industry , Causation , Ford Motor , Ford Motor Co. v Montana Eighth Judicial District Court , Jurisdiction , Personal Jurisdiction , SCOTUS

Signs Point to Biden Administration Continuing Trend Towards Increased Enforcement of Foreign Agents Registration Act

President Joseph Biden on January 20, 2021, made news with his Inauguration Day flurry of executive orders. Potentially lost in the shuffle, however, was the Executive Order on Ethics Commitments, which required “every...more

3/2/2021 / Biden Administration , Executive Orders , Foreign Agents , Foreign Agents Registration Act (FARA) , Foreign Governments , Lobbying , National Security , Reporting Requirements

Due Process Protections Act Enacted Into Law

On October 21, 2020, President Donald J. Trump signed the Due Process Protections Act, S. 1380, which provides additional protections for criminal defendants’ due process right to receive material exculpatory evidence from...more

10/29/2020 / Bipartisan Agreement , Brady Violation , Criminal Procedure , Disclosure Requirements , Due Process Protections Act , Judges , Trump Administration

Tensions Rise Between China and the United States: Intellectual Property Prosecutions Just the Tip of the Iceberg

Amid escalating tensions between the United States and China over the last few years, the United States Department of Justice (“DOJ”) has formally prioritized criminal prosecutions of Chinese nationals and companies, and...more

Seventh Circuit “In Chambers” Opinion Provides Key Guidance on Amicus Briefs

Key Takeaways - The United States Court of Appeals for the Seventh Circuit recently issued a decision providing new guidance on how to draft amicus briefs that the court will accept for filing. The court stressed the...more

10/17/2020 / Amicus Briefs , Appeals , Appellate Courts , Judges , Litigation Strategies , New Guidance , Richard Posner

U.S. Executive and Legislative Branches Raise the Heat on Slave Labor and Trade Law Violations

Weeks ago, on September 14 2020, the Trump Administration made news by announcing a ban on the importation of certain products made in China’s Xinjiang region, where widespread human rights abuses—including slave labor work...more

10/6/2020 / China , Compliance , Corporate Counsel , Customs and Border Protection , Department of Justice (DOJ) , Federal Bans , Federal Food Drug and Cosmetic Act (FFDCA) , Forced Labor , Foreign Corrupt Practices Act (FCPA) , Human Rights , Imports , Park Doctrine , Supply Chain , Trump Administration , US Trade Policies

Understanding the Rules of the Road for Pardon Applications

With the U.S. presidential election less than 50 days away, pardon season is ramping up, and it is likely to be especially active after the election results. In our experience—one author served as a federal prosecutor, one...more

9/20/2020 / Presidential Pardons , Trump Administration

Corporate America can be a Powerful Force for Good to Root out Modern-Day Slavery

Key Takeaways - Slave, forced, and child labor is a modern-day reality impacting some 40 million people throughout the world, by some estimates. Such practices are—and have always been—repugnant, and certainly have no place...more

Personal Jurisdiction and Class Actions: D.C. and Seventh Circuit Address Whether Bristol-Myers Applies to Class Actions

Following the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court, class action defendants have arguments that there is no personal jurisdiction over non-resident class members in putative class actions brought...more

3/30/2020 / Bristol-Myers Squibb , Class Action , Class Certification , Class Members , Non-Residents , Personal Jurisdiction , SCOTUS

Actual Impact of 2018 U.S. CLOUD Act Still Hazy

Over a year following enactment of the U.S. “Clarifying Lawful Overseas Use of Data” or CLOUD Act, significant questions remain unanswered about the law and its potential impact on global investigations involving cloud stored...more

Standing Question Prevents Clarity from Justices on “Cy Pres” Class Action Settlements

In Frank v. Gaos, plaintiff Paloma Goas brought a class action alleging that Google’s transmission of users’ search terms violated the Stored Communications Act, 18 U.S.C. § 2701, et seq. (“SCA”). The SCA creates a private...more

4/1/2019 / Appeals , Class Action , Cy Pres Funds , Frank v Gaos , FRCP 23 , FRCP 23(e) , Google , Injury-in-Fact , Private Right of Action , Remand , SCOTUS , Settlement , Spokeo v Robins , Standing , Statutory Violations , Stored Communications Act , Vacated

SCOTUS Unanimously Holds Deadline for Permission to Appeal Class Certification Ruling Cannot be Equitably Tolled

To immediately appeal a federal district court’s order granting or denying class certification, a party must first seek permission from the relevant court of appeals “within 14 days after the order is entered.” Fed. R. Civ....more

2/28/2019 / Class Action , Class Certification , Collective Actions , Decertification , Equitable Tolling , Federal Rules of Appellate Procedure , Filing Deadlines , FRCP 23(f) , Interlocutory Appeals , Leave to Appeal , Motion for Reconsideration , Nutraceutical Corp v Lambert , Permission to Appeal , SCOTUS

Michael McGinley

Dechert LLP

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