Government Affairs and Legislative Process: National Journal Article on Lobbying Reform

On March 21, the National Journal published a column on lobbying reform by Eliza Newlin Carney that included a discussion of the ABA Administrative Law and Regulatory Practice Section's Federal Lobbying Laws Task Force report and recommendations.

Antitrust and Trade Regulation/Criminal Process: FTC Issues 2010 Report on Consumer Fraud and Identity Theft Complaints

On March 8, the Federal Trade Commission issued the Consumer Sentinel Network Data Book for 2010. The Data Book, which includes data for consumer complaints that the FTC received in 2010, notes that for the 11th year in a row, identity theft was the leading category of consumer complaints received (250,854, constituting 19 percent of all complaints). Debt collection was the second-highest category of complaints in 2010 (144,159, constituting 11 percent), as it was in 2009. So-called “imposter scams” – i.e., schemes in which fraudsters posed as friends, family, respected companies, or even government agencies to persuade consumers to send them money – made the top 10 for the first time.

Antitrust and Trade Regulation/Intellectual Property: FTC Issues Report on Patent System and Competitiveness

On March 7, the Federal Trade Commission issued a report titled, "The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition." The report examines technology markets and patent markets and offers a competition perspective on patent notice and patent remedies (including how patent notice and remedies affect innovation and competition).

Securities, Commodities, and Exchanges: Sutherland Asbill Releases Survey of FINRA Sanctions

On February 28, Sutherland Asbill & Brennan issued a press release announcing the results of their latest survey of Financial Industry Regulatory Authority (FINRA) sanctions against broker-dealers and associated persons. In brief, the survey found that in 2010:
- FINRA’s disciplinary actions increased from 1,158 to 1,310 -- an increase of more than 13 percent and a reversal of "the substantial slowdown in disciplinary actions filed between 2006 and 2008."
- FINRA fined firms and individuals approximately $45 million, "falling just short of 2009’s $50 million in fines."
- Advertising cases generated the largest amount of total fines (approximately $4.75 million), and Credit Default Swap (CDS) cases the second largest amount of fines ($4.5 million in six cases).
- Fines in mutual fund cases "have been on the decline," while advertising cases "seem to be of growing importance to FINRA."

Freedom of Information and Privacy: U.S. Supreme Court Decides Corporations Cannot Claim FOIA Law Enforcement/"Personal Privacy" Exemption

On March 1, in a unanimous (8-0) decision in FCC v. AT&T, the U.S. Supreme Court held that corporations do not have “personal privacy” for the purposes of Exemption 7(C) of the Freeedom of Information Act (FOIA), 5 U.S.C. §552(b)(7)(C). Exemption 7(C) creates an exemption from the general disclosure obligations of FOIA for law enforcement records the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
Chief Justice Roberts, writing for the Court, found "no sound reason in the statutory text or context to disregard the ordinary meaning of the phrase 'personal privacy'" (slip op. at 9), and found further clarification in the meaning of that term in the rest of FOIA, particularly Exemptions 4 and 6. (Id. at 9-11.) The decision puckishly concluded: "We trust that AT&T will not take it personally." (Id. at 12.) Justice Kagan took no part in the consideration or decision of the case.

Regulatory Policy/Rulemaking: President Issues Memorandum on Reducing Regulatory Burdens for State and Local Governments

On February 28, President Obama issued a memorandum to federal executive departments and agencies, directing them (as summarized in a White House press release) "to work with State, Tribal, and local governments to reduce unnecessary regulatory and administrative burdens in order to focus resources on achieving better outcomes at lower cost." According to the release, the memorandum builds on Executive Order 13563, which the President issued on January 18 to outline his regulatory strategy. (See the January 18 Notice and Comment posting on Executive Order 13563.)
The Memorandum instructs the Director of OMB "to lead a collaborative process of Federal agencies, State, Tribal, and local governments to coordinate and streamline procedures that cut across agency, program and geographic bounds," and requires agencies "to work closely with States, Tribes, and local governments to identify administrative, regulatory, and legislative barriers in Federally-funded programs that currently prevent them from efficiently using tax dollars to achieve the best results for their constituents." It further requires that this work be done "in collaboration with territories as well, and with input from other key program partners."
The Memorandum also directs OMB to (1) review "guidance concerning cost principles and audits for State, local, and Tribal governments to eliminate unnecessary, unduly burdensome, or low-priority recordkeeping requirements and to tie requirements to achievement of outcomes;" (2) "[s]tandardize and streamline reporting and planning requirements in accordance with the Paperwork Reduction Act to develop efficient, low-cost mechanisms for collecting and reporting data and preparing expenditure plans that can support multiple programs and agencies": and (3) "[f]acilitate cost-efficient modernization of State and Tribal information systems, in collaboration with the Chief Technology Officer in the Office of Science and Technology Policy."
The Memorandum also requires agencies "to report back within 180 days of the date of this memorandum on their actions to identify regulatory and administrative requirements that can be streamlined, reduced, or eliminated, and where increased State flexibility could be provided to achieve the same or better outcomes at lower cost."

Regulatory Policy/Rulemaking: House Judiciary Subcommittee Holds Hearing on Administrative Procedure Act

On February 28, the House Judiciary Committee's Subcommittee on Courts, Commercial and Administrative Law held a hearing on "The APA at 65 – Is Reform Needed to Create Jobs, Promote Economic Growth and Reduce Costs?” Witnesses at the hearing included Susan Dudley, Research Professor of Public Policy and Public Administration at George Washington University, Jeffrey Rosen, a partner at Kirkland & Ellis and former OMB General Counsel (and current Section Council member), and Peter Strauss, Betts Professor of Law at Columbia Law School (and former Section Chair).