Non-Delegation Doctrine, FTC's Non-Compete Rule and Green Guides ... Oh My!
The Justice Insiders: The Administrative State is Not Your Friend - A Conversation with Professor Richard Epstein
In this episode of our "An Energized Exchange" podcast series by our Energy & Natural Resources Industry Sector Group, attorneys Andy Kriha and Halley Townsend explore the topic of the non-delegation doctrine, specifically in...more
As we covered in our first alert, the U.S. Supreme Court in Loper Bright Enterprises v. Raimondo overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and abandoned the Chevron doctrine, which previously...more
In a much-watched case concerning the administrative state, on June 27, the Supreme Court decided in SEC v. Jarkesy that defendants facing a fraud suit by the SEC have a Seventh Amendment right to a jury trial in an Article...more
In a controversial move, on April 24, 2024 the Federal Trade Commission (“FTC”) announced that beginning September 4, 2024, it will enforce its Final Rule banning most non-compete agreements that seek to limit a worker’s...more
The Fifth and D.C. Circuit federal appellate courts are now poised to issue pivotal decisions in the ongoing litigation challenging the constitutionality of the FCC’s universal service support mechanisms. Their opinions will...more
An impending Supreme Court decision is poised to transform how the National Labor Relations Board decides cases and may fundamentally alter the course of labor relations as we know it. We predict that a SCOTUS decision to be...more
In recent years, independent agencies have continued to face a number of constitutional and statutory challenges before the Supreme Court. AMG Capital Management struck down the Federal Trade Commission’s authority to obtain...more
One of the most significant areas of the law for businesses is administrative law. From questions about a new industry-specific regulation to marshaling a defense against enforcement proceedings, any entity that is subject to...more
Under constitutional law, the nondelegation doctrine prevents Congress from adopting laws that give administrative agencies overly broad discretion to adopt regulations that usurp its legislative authority. Recently, the...more
It’s not just the New York Yankees that wish they could put the summer behind them. We previously wrote about the shocking blow the D.C. Circuit Court of Appeals dealt FINRA in early July by enjoining the self-regulatory...more
The U.S. Supreme Court on June 30, 2023, agreed to hear the case of SEC v. Jarkesy.1 The case is an appeal of a U.S. Court of Appeals for the Fifth Circuit decision that held that the U.S. Securities and Exchange Commission's...more
Last fall, the United States Court of Appeals for the Fifth Circuit found that the CFPB’s independent funding through the Federal Reserve was in violation of the Appropriations Clause and the underlying separation of powers...more
On March 30, 2023, the United States District Court for the Northern District of Texas issued an order in Braidwood Management Inc. v. Becerra (“Braidwood”), vacating any and all actions taken by the DOL and other federal...more
On March 23, 2023, the Court of Appeals for the Second Circuit issued a decision in CFPB v. Law Offices of Crystal Moroney (Moroney). The case reviewed constitutional challenges to the Consumer Financial Protection Bureau's...more
Many employers in Massachusetts use non-competes to protect their intellectual property. Non-compete agreements may be overly broad for that narrow purpose but their virtue is that it is much easier to detect their violation...more
On October 19, 2022, three judges in the Fifth Circuit Court of Appeals ruled that the funding mechanism of the Consumer Financial Protection Bureau (CFPB) is unconstitutional. Specifically, the court found CFPB’s receiving...more
When the Securities and Exchange Commission (SEC) decides to pursue formal enforcement proceedings against a company or individual, it can choose whether to do so in an Article III court, or through the SEC’s own...more
Now that Congress knows there is such a thing as the Major Questions Doctrine, what can Congress do about it? Think big or go home. In West Virginia v EPA, the Supreme Court faulted the EPA’s plan for shifting electric...more
The Environmental Protection Agency’s new drinking water health advisories for PFAS, released on June 15, 2022, included an advisory level of 10 parts per trillion (ppt) for hexafluoropropylene oxide dimer acid and its...more
On Thursday, June 30, 2022, the United States Supreme Court issued its decision in West Virginia v. EPA, striking down the Obama-era Clean Power Plan (CPP) and limiting the Environmental Protection Agency’s (EPA’s) authority...more
A groundbreaking decision released by the Fifth Circuit on May 18 signals a changing landscape for federal administrative law and the separation of powers. In Jarkesy v. Securities and Exchange Commission, 34 F.4th 446 (5th...more
In this episode of The Justice Insiders, we welcome Richard A. Epstein, Laurence A. Tisch Professor of Law at NYU School of Law. Host Gregg Sofer and co-host Steve Renau explore with Professor Epstein the implications...more
Key Points On May 18, 2022, in Jarkesy v. SEC, No. 20-61007 (5th Cir. May 18, 2022), a split panel of the U.S. Court of Appeals for the Fifth Circuit identified three independent constitutional flaws in the administrative...more
The Court has decided the latest in a series of important cases interpreting the reach of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 1 et seq....more