In 1996, Congress passed the Congressional Review Act (CRA). Before an executive agency rule—broadly defined to include agency guidance documents—can take effect, the CRA requires the agency to submit it to Congress and the Government Accountability Office. The CRA provides fast-track procedures for Congress to overrule any rule with a joint resolution of disapproval if the President signs it into law (or Congress overrides any veto). The expedited procedures may be used during the first 60 session days after the rule is submitted and during the first 60 session days of the next session if the rule was submitted near the end of the previous session. The only successful invalidation of a regulation prior to this year was in 2001, when the Department of Labor ergonomics rule issued at the end of the Clinton Administration was voided.
In the last few months, there has been renewed attention to the CRA, with Congress’ action to overrule many more rules. And some have asserted that the law may have much broader implications for rules passed over the past 8 years and not previously sent to Congress as the CRA requires.
Former Congressman David McIntosh, who sponsored the CRA, and former congressional counsel to Mr. McIntosh, Todd Gaziano, will join us to discuss the ins and outs of the CRA and its potential applications in the coming months. This Teleforum is the second installment in our Legal Options for the New Administration series.
Hon. David M. McIntosh, President of the Club for Growth and Vice Chairman of The Federalist Society
Todd F. Gaziano, Senior Fellow in Constitutional Law and Executive Director of Pacific Legal Foundation’s DC Center
According to the Competitive Enterprise Institute, over 97% of mergers and acquisitions result in "strike suits," litigation seeking to enjoin a merger that often quickly settles for attorneys' fees and supplemental disclosures to shareholders. In In Re: Walgreen Co. Stockholder Litigation, 832 F.3d 718, a recent case over such a settlement, Judge Richard Posner called the practice a "racket," and the Seventh Circuit rejected the lawsuit’s claims. Meanwhile, Delaware and New York courts have come out on opposite sides of the issue.
Ted Frank of the Competitive Enterprise Institute, who successfully argued Walgreen and has multiple appeals on the subject pending in other jurisdictions, discussed developments in the area over the last year and answer questions.
Theodore H. Frank, Senior Attorney & Director, Center for Class Action Fairness (CCAF), CEI
On February 27, the Supreme Court will hear oral argument in Packingham v. North Carolina. This First Amendment case deals with whether a state may bar citizens from accessing social media sites like Facebook and Twitter. A North Carolina state law makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of popular websites that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. In the trial court, the Defendant was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Some contend that the law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and is unjustified by any compelling need.
Jonathan Sherman, Partner at Boies Schiller Flexner and Melissa Arbus Sherry, Partner at Latham & Watkins will provide a preview of this interesting case.
Jonathan Sherman, Partner at Boies Schiller Flexner
In McLane v. EEOC the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena.
Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities” test, which she failed three times. Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane. The 9th Circuit reversed, reviewing the district court’s decision to limit the scope of the EEOC subpoena “de novo,” which is contrary to the deferential review eight other appellate courts follow. The Supreme Court has been asked to resolve this circuit court split.
Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and joined us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call.
Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
The American Bankers Association and Washington Federal, a bank holding company, have filed a suit against the United States government for reducing the amount of dividends paid to banks that own Federal Reserve stock. In the Federal Reserve Act of 1913, the Federal Reserve agreed to pay 6% annual dividends to stockholders of regional Federal Reserve Banks, but Congress decreased that amount to 2% in 2015 in the Fixing America’s Surface Transportation Act, or FAST Act, which appropriated the other 4% of would-be-dividends for highway funding. Proponents of the change argue that 6% dividends were exorbitant returns for the stock, and that banks are still guaranteed a positive return, even at 2%.
Brett Shumate and Steve Obermeier of Wiley Rein, who represent the plantiffs in this case, joined us to discuss the pending litigation.