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.