Briefing Program Assesses WLF’s Supreme Court Cert Petition in “Gordon v. CFPB”

Gordon v. CFPB: Will the High Court Halt an End-Run Around the Appointments Clause?

screen shot Gordon MB

To view this WLF Media Briefing program on our IBM Cloud Video channel click here.
To view the program on our YouTube channel, click here.

The program featured commentary on WLF cert petition on behalf of our client Chance Gordon currently pending before the US Supreme Court. The Court may decide as early as this Thursday, May 25, on our review request. WLF’s petition argues that the Consumer Financial Protection Bureau could not lawfully prosecute a claim against Mr. Gordon at a point when the agency lacked a lawfully appointed director.

Our Gordon v. CFPB page, which contains our briefs and press releases in the case, is available here.

 

Corrosive Legal Uncertainty Remains after DC Circuit’s Rehearing Denial in “Net Neutrality” Case

RothGuest Commentary

By Arielle Roth, The Hudson Institute*

It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case.  As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.

On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading

One Loss before ALJ Doesn’t Unmake SEC’s Home-Court Advantage

Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Las Vegas odds makers say that having the home field is worth about three points to the average National Football League team, which is helpful but not a guarantee of victory. For some teams, however, the home-field advantage gives them an almost insurmountable edge. Between 2012 and 2015, for example, the Seattle Seahawks won 27 out of 32 home games and all four of their home playoff games. During that period, no other NFL team had a bigger home-field advantage.

Despite the huge advantage playing at home gave the Seahawks, it didn’t make them unbeatable. After all, they did lose five out of those 36 games. All of which is why the press hullaballoo over a Securities and Exchange Commission administrative law judge’s (ALJ) decision in In re Hill1 is much overblown. Continue reading

Federal Court Rules Local Oil and Gas Development Ban Violates 1st and 14th Amendments

Featured Expert Column – Environmental Law and Policy

sboxermanBy Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In a twist on the typical case addressing local oil and gas bans, the Western District of Pennsylvania struck down a Grant Township, PA ordinance finding the law impermissibly stripped Pennsylvania General Energy Co. (PGE) of its constitutional rights. The decision, Pennsylvania General Energy Co. v. Grant Township, is an important and unique precedent for the rights of a corporation to conduct a lawful business in the face of local opposition. Continue reading

Supreme Court Addresses Judges’ Inherent Sanction Authority in “Goodyear v. Haeger”

Featured Expert Column—Civil Justice/Class Actions

Cruz-Alvarez_FFrank Cruz-Alvarez, a Partner in the Miami, FL office of  Shook, Hardy & Bacon L.L.P., with Rachel A. Canfield, an Associate with the firm.

Most litigants are familiar with the federal sanction powers as promulgated under Federal Rules of Civil Procedure 11, 26, 30 and 37, as well as pursuant to 28 U.S.C. § 1927.  Each sanction power is codified in the applicable Rule or statute and limited in scope to a particular type of misconduct.1 However, a court’s inherent power to levy sanctions is arguably broader and more amorphous in nature than any of the other sanction powers.  As a result, many litigants are unclear about the full extent and application of a court’s inherent power to sanction.

On April 18 in Goodyear Tire & Rubber Co. v. Haeger, the United States Supreme Court provided more clarity on such limitations when it resolved a split of authority among federal appellate courts regarding the breadth of a federal court’s inherent authority to sanction a litigant for bad-faith misconduct. Continue reading

Outcome of Recently Argued “Kokesh” SCOTUS Case Will Impact SEC’s Use of Potent Disgorgement Authority

Featured Expert Contributor — Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Disgorgement of ill-gotten gains long has been a basic tool in the Securities and Exchange Commission’s (SEC) penalty toolkit, despite a paucity of statutory authorization.1 The equitable nature of disgorgement has meant courts have had to resolve many questions without the benefit of statutory guidance. In Kokesh v. SEC,2 the US Supreme Court took up the seemingly technical—but surprisingly important—question of what statute of limitations applies to SEC disgorgement actions.

Appellant Charles Kokesh owned and controlled a pair of investment adviser firms that, in turn, managed four business development corporations (BDCs). Both the investment advisers and the BDCs were registered with SEC. SEC alleged that Kokesh misappropriated almost $35  million from the BDCs for the benefit of himself and the investment adviser firms. After a civil trial, a jury agreed that Kokesh had fraudulently misappropriated the funds. The trial judge ordered Kokesh to disgorge $34.9 million, which it found “reasonably approximates the ill-gotten gains causally connected to Defendant’s violations.” Continue reading

Federal Court Properly Defers to Oklahoma Oil and Gas Oversight, Rejects Sierra Club Bid for Federal Regulation

Guest Commentary

Robeck_MarkBy Mark R. Robeck, Kelley Drye & Warren LLP. Mr. Robeck is a Partner in the firm’s Washington, DC office and a contributor to its Fracking Insider blog.

In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity.  Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.

In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection. Continue reading