Administrative Conference of the United States: ACUS Appoints 40 Public Members

On September 28, the Administrative Conference of the United States (ACUS) announced its intention to appoint 40 public members. The list of public members includes numerous distinguished practitioners, law professors, and deans, including four former Chairs of the ABA Administrative Law and Regulatory Practice Section (Russell Frisby, Philip Harter, Ronald Levin, and Randolph May), the current Chair-Elect of the Section (Michael Herz), and both current Section delegates to the ABA House of Delegates (Randy May and John Vittone). These 40 public members will join 50 senior federal officials and notable administrative law experts (as senior fellows) to form ACUS.

Judicial Review/Environmental Law: Ninth Circuit Dismisses Wilderness Society Challenge to ARA Regulations

On September 22, the U.S. Court of Appeals for the Ninth Circuit, in Wilderness Society v. Rey, No. 06-35565, dismissed as nonjusticiable a challenge by The Wilderness Society and other environmental groups (TWS) to revised regulations by the U.S. Forest Service under the Forest Service Decisionmaking and Appeals Reform Act (“ARA”). In 2003, according to the Court, "the Forest Service revised the regulations implementing the ARA to significantly limit the scope and availability of notice, comment,and appeals procedures." The district court had granted TWS declaratory and injunctive relief on the basis that the revised regulations were inconsistent with the ARA.

Subsequently, the U.S. Supreme Court held, in Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149 (2009), that "[t]o seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury." As the Ninth Circuit noted in Wilderness Society, "[t]he Court [in Summers] reiterated that where the regulations being challenged do not require or forbid any action on the part of the respondents, standing is substantially more difficult to establish. Id. Earth Island lacked standing to challenge [the relevant regulations], because it failed to identify an “application of the invalidated regulation that threaten[ed] imminent and concrete harm to the interests of [its] members.” Id. at 1150. In this case, the Ninth Circuit declined to find that either procedural or informational injury was sufficient to confer standing on the plaintiffs.

Intellectual Property/International Law: European Parliament Calls on EC to Propose EU-Wide IPR Strategy

On September 22, the European Parliament, by a vote of 328 to 245, approved a report on intellectual property rights (IPR), calling on the European Commission (EC) "to propose a comprehensive strategy on IPR which will remove obstacles to creating a single market in the online environment and adapt the European legislative framework in the field of IPR to current trends in society as well as technical developments." Members of the European Parliament (MEP) characterized the ""enormous growth of unauthorised file sharing of copyrighted works [as] an increasing problem for the European economy in terms of job opportunities and revenues for the industry as well as for government." They also asked the EC "to think broadly about methods of facilitating industry's access to the digital market without geographical borders by addressing urgently the issue of multi-territory licences and the harmonisation of legislation on copyright," adding that a pan-European licensing system should provide consumers with "access to the widest possible choice of content and not at the expense of European local repertoire."

Constitutional Law: New Yorker Article on Justice Breyer

The September 27 issue of the New Yorker featured an article by Jeffrey Toobin on U.S. Supreme Court Justice Stephen Breyer and his work on the Court. An abstract of the article noted that "as a scholar and a judge, Breyer has been most interested in the less glamorous field of administrative law, which is now, suddenly, at the center of the Court’s agenda." New Yorker subscribers may read the full text of the article online.

Antitrust and Trade Regulation/International Law: U.K. Competition Commission and OFT Issue Joint Merger Guidelines

On September 16, the United Kingdom Competition Commission (CC) and the Office of Fair Trading (OFT) jointly issued Merger Assessment Guidelines. This document, which supersedes various prior OFT and CC guidelines, "explains the approach of the OFT when considering whether or not to refer a merger to the CC for further investigation and the approach of the CC when exploring more extensively the statutory questions posed in merger references. It highlights the differences of emphasis, as well as the commonalities, between the approaches of the OFT and the CC (‘the Authorities’)."

The new Guidelines consist of seven parts: (1) explanatory notes and an outline of the UK merger regime; (2) overarching questions that the OFT and the CC must consider in conducting reviews of mergers; (3) an explanation of what is meant by a "relevant merger situation"; (4) an explanation of the Authorities’ approach to the concept of a "substantial
lessening of competition’ (SLC) and outlines the notions of "theories of harm" and the "counterfactual"; (5) a description of the analytical approach and methodologies applied by the Authorities in considering the SLC test; (6) guidance on public interest cases; and (7) additional guidance relevant to the UK merger control regime.

Ethics: European Court of Justice Affirms Scope of Legal Professional Privilege

On September 14, the European Court of Justice held, in Akzo Nobel Chemicals v. European Commission, No. C-550/O7 P, that the legal professional privilege did not apply to e-mail communications between a corporate oficer and a corporate in-house lawyer. The decision stemmed from a 2003 investigation by Commission oficials into alleged anticompetitive practices involving two companies established in the United Kingdom, Akzo Nobel Chemicals Ltd (Akzo) and Akcros Chemicals Ltd (Akcros). As part of that investigation, Commission officials took copies of two emails between Akcros’s general manager and Akzo’s coordinator for competition law, who was a member of the Netherlands bar and, at the time, a member of Akzo’s legal department.

The European Court of Justice rejected the companies' argument that the emails came within the scope of the legal professional privilege. In its 1982 decision in AM & S Europe v Commission, [1982] ECR 1575, the Court had held that the confidentiality of written communications between lawyers and clients should be protected at Community level, but was subject to two cumulative conditions: (1) that the exchange with the lawyer must be connected to "the client’s rights of defence"; and (2) that "the exchange must emanate from 'independent lawyers', that is to say ‘lawyers who are not bound to the client by a relationship of employment’." With regard to the second condition, the Court had also held, in AM & S Europe, "that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart to that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest. The Court also held . . . that such a conception reflects the legal traditions common to the Member States and is also to be found in the legal order of the European Union, as is demonstrated by the provisions of Article 19 of the Statute of the Court of Justice."

In the present case, the Court found "that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers." Since it found, "both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer," the Court concluded that the lower court had correctly applied the second condition for the legal professional privilege set forth in AM & S Europe.

Securities/Commodities: FT Special Report on Commodities

For those interested in commodities issues, the Financial Times has put out a special report on the subject with a variety of articles and analyses.

Antitrust/International Law: Canadian Competition Bureau Plans Consultations on Revising Merger Enforcement Guidelines

On September 7, the Canadian Competition Bureau announced that "it will hold a series of roundtables to explore the merits of revising the Merger Enforcement Guidelines." Those Guidelines, which were issued in 2004, set out the framework that the Competition Bureau uses to evaluate the potential competitive effects of mergers. The announcement also stated that "[t]he purpose of the roundtables will be to assess whether the guidelines accurately reflect current merger review practices at the Bureau and the potential impact of the recent publication of the revised Horizontal Merger Guidelines by the antitrust authorities in the United States, as well as other legal and economic developments." This announcement follows closely on the heels of the recent issuance of revised merger guidelines by the U.S. Department of Justice and the Federal Trade Commission. (See the August 19 N&C post for details.)

Environment/Energy: BP Issues Internal Investigations Report on Deepwater Horizon Accident

On September 8, BP issued its internal investigations report into the accident on the Deepwater Horizon rig in the Gulf of Mexico on 20 April 20. In brief, BP stated that "[t]he investigation found that no single factor caused the Macondo well tragedy. Rather, a sequence of failures involving a number of different parties led to the explosion and fire which killed 11 people and caused widespread pollution in the Gulf of Mexico earlier this year." The BP webpage on the report includes links to the executive summary, the full text of the report, presentation slides, and even a 29-minute video about the investigation.

Communications/International Law: U.K. Ofcom Issues Consultation Paper on Net Neutrality

On June 24, Ofcom, the independent regulator and competition authority for the United Kingdom communications industries, issued a consultation paper on traffic management and net neutrality. An Ofcom statement reported that the purpose of the consultation paper is to open up a discussion on how existing and future powers "might be used to address traffic management concerns and what stance Ofcom should take on any potential anti-competitive discrimination," and that the paper "raises questions about transparency and consumers’ awareness of the traffic management policy of the broadband service they have paid for." Comments may be submitted online, by email, or mail, but must be received by September 9.

Trade Regulation/International Law: Australia Enacts New National Consumer Protection Law

On July 13, the Australian Trade Practices Amendment (Australian Consumer Law) Bill (No. 2) 2010 received final assent. According to the summary by the Australian Parliament, the lengthy bill (402 pages total) "amends: the Trade Practices Act 1974, Australian Securities and Investments Commission Act 2001 and Corporations Act 2001 to implement a national consumer law regime (the Australian Consumer Law) in relation to: general and specific consumer protections; misleading and deceptive conduct; unconscionable conduct; unfair practices; consumer transactions; statutory consumer guarantees; a standard consumer product safety law for consumer goods; and product-related services; the Trade Practices Act 1974 to rename it as the Competition and Consumer Act 2010; and 61 Acts to reflect the change in title of the Trade Practices Act 1974."

Veterans Benefits: VA Proposes Plain-Language Rewrite of Service-Connected and Other Disability Compensation Regs

On September 1, the Veterans Administration announced that it "proposes to reorganize and rewrite in plain language its regulations concerning service-connected and other disability compensation." The VA proposed the revisions as part of its "reorganization of all of its compensation and pension regulations in a logical, claimant-focused, and user-friendly format." The VA stated thet "[t]he intended effect of the proposed revisions is to assist claimants, beneficiaries, and VA personnel in locating and understanding these regulations."

The comment period on the proposed rule ends November 1, 2010. Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to: Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM07—Service-Connected and Other Disability Compensation.”

Securities/Commodities: SEC Announces Temporary Rule Requiring Registration of Municipal Advisors

On September 2, the Securities and Exchange Cmomission announced that it "has adopted a temporary rule requiring municipal advisors to register with the SEC by October 1." The SEC stated that this deadline "was established by the newly-enacted Dodd-Frank Wall Street Reform and Consumer Protection Act." Subject to certain exemptions, Dodd-Frank defines "municipal advisors" -- who provide advice to state and local governments and other borrowers involved in the issuance of municipal securities and solicit business from a state or local government for a third party -- to include "financial advisors, guaranteed investment contract brokers, third-party marketers, placement agents, solicitors, finders, and certain swap advisors that provide municipal advisory services." Municipal advisors may register online with the SEC.

Intellectual Property: Patent and Trademark Office Issues New Obviousness Guidelines

On September 1, the U.S. Patent and Trademark Office (USPTO) published in the Federal Register an update to its examination guidelines "concerning the law of obviousness under 35 U.S.C. 103 in light of recent precedential decisions of the United States Court of Appeals for the Federal Circuit issued since the 2007 decision by the United States Supreme Court in KSR Int’l Co. v. Teleflex Inc." The USPTO invited public comment on the update, specifically noting that it "is especially interested in receiving additional suggestions in the field of obviousness that would have particular value as teaching tools." Comments may be sent to KSR_Guidance@uspto.gov.

International Trade: New WTO Report on World Merchandise Trade

On Septemebr 1, the World Trade Organization issued a release reporting that the value of world merchandise trade rose around 25 percent in the first six months of 2010, "up strongly from the same period of 2009." The release also stated that "[t]his surge in trade growth marks a continuation of the trend begun in the first quarter of the year."

Securities/Commodities: CFTC Issues New Rules on Retail Forex Trading

On August 30, the Commodity Futures Trading Commission (CFTC) announced the publication in the Federal Register of final regulations concerning off-exchange retail foreign currency transactions. According to the announcement, the rules "implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Food, Conservation, and Energy Act of 2008."

In brief, "[t]he final forex rules put in place requirements for, among other things, registration, disclosure, recordkeeping, financial reporting, minimum capital and other business conduct and operational standards. Specifically, the regulations require the registration of counterparties offering retail foreign currency contracts as either futures commission merchants (FCMs) or retail foreign exchange dealers (RFEDs), a new category of registrant. Persons who solicit orders, exercise discretionary trading authority or operate pools with respect to retail forex also will be required to register, either as introducing brokers, commodity trading advisors, commodity pool operators (as appropriate) or as associated persons of such entities. 'Otherwise regulated' entities, such as United States financial institutions and SEC-registered brokers or dealers, remain able to serve as counterparties in such transactions under the oversight of their primary regulators." The rules become effective October 18, 2010.