The FTC and SEC have their own administrative dispute resolution regime, presided over by their own administrative judges (“ALJs”). Until now, those regimes were virtually immune from attack on a constitutional basis, because any such challenge had to wait until appeal to the federal courts (which only happened after a full trial and appeal to the agency itself). No longer. On April 14, 2023, the Supreme Court held that the Federal Trade Commission Act and the Securities Exchange Act do not create an alternative review scheme in which constitutional challenges must first go through the agencies, and only later receive federal court review in a court of appeals.
Supreme Court
Commercial Fishermen Urge Supreme Court to Reel In Agency Authority
By Jake R. Butwin & Allan Bloom on
The U.S. Supreme Court has agreed to hear a case challenging its landmark 1984 decision in Chevron v. Natural Resources Defense Council. The high court’s ruling could have important implications on federal officials’ discretion to regulate in many facets of American life.
Antitrust and Section 230: Where Are We After Gonzalez v. Google?
In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.
The Supreme Court Enters the Digital Age
By John E. Roberts on
Electronic filing is coming to the U.S. Supreme Court! Effective November 13, 2017, amendments to the Supreme Court’s rules take effect that require represented parties (and their amici) to submit petitions, briefs, and most other filings through the Court’s electronic filing system. The Rules explain that the new e-filing requirements are “[i]n addition to the filing requirements” already set forth in the Rules. Accordingly, parties and their amici will still be required to submit forty copies of their briefs on paper in booklet form, and they now must additionally submit one paper copy on 8.5 x 11 inch paper (in case the Clerk’s office needs to scan the brief for any reason). The paper submission remains the “official filing” for purposes of determining timeliness, but e-filing is supposed to occur “contemporaneously” with the paper filing. Pro se parties will continue to file submissions exclusively on paper; those submissions will be scanned by the Clerk’s office and posted on the Court’s web site.
Concrete Enough to Stand: Ninth Circuit Upholds FCRA Claims in Spokeo
By Tiffany Woo on
On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA).
Robins had brought a putative class action against Spokeo, which operates a “people search engine” that compiles consumer data into online reports of individuals’ personal information. Robins alleged that Spokeo had willfully violated the FCRA’s procedural requirements, including that consumer reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the information” in consumer reports, because Spokeo’s report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person. According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress.
Courts Split on Definition of a “Return” for Tax Discharge
By Rucha Desai on
On October 11, 2016, Martin Smith petitioned the Supreme Court for a writ of certiorari to review a decision by the Ninth Circuit. After Smith failed to file a timely tax return, the IRS assessed a deficiency against him. Smith filed a belated Form 1040, and the IRS determined he owed an additional $60,000 in taxes. By this time, Smith was unemployed and insolvent, and ultimately filed for bankruptcy. The opportunity for Smith to discharge his tax debt rests exclusively on the interpretation of two terms in the relevant statute.
Courts Split on Standing Issues in FCRA Suits After Spokeo
By Tiffany Woo on
On October 5, 2016, two district courts came to opposite conclusions on whether putative class action plaintiffs had standing to bring claims based on prospective employers’ failure to comply with Fair Credit Reporting Act (FCRA) disclosure requirements.
Standing under Article III of the Constitution requires (1) an injury in fact (2) fairly traceable to the challenged conduct of the defendant and (3) likely to be redressed by a favorable judicial decision. Earlier this year, the Supreme Court in Spokeo, Inc. v. Robins clarified that to confer standing, an injury in fact must be both particularized – affecting the plaintiff in a “personal and individual” way – and concrete – “real, not abstract.”
The Eighth Circuit Extinguishes Claims of Continuing Conduct in Propane Tank Conspiracy
By Stephen R. Chuk on
Before plaintiffs could light the pilot on antitrust claims against two propane tank distributors, a split Eighth Circuit panel cut the gas. In doing so, the majority espoused a narrow view of the applicability of the continuing violations theory in antitrust litigation.
In 2014, following an FTC administrative complaint, class plaintiffs brought suit against defendant distributors Ferrellgas and AmeriGas, alleging that in 2008, facing rising costs of propane, the distributors conspired to reduce the fill level of 20-pound propane tanks from 17 pounds to 15 pounds while maintaining the price. Though a separate group of indirect purchasers settled with Defendants regarding similar claims in 2008, Plaintiffs argued that Defendants’ conspiracy continued, and that Defendants continued to sell the propane tanks at higher prices and at lower fill levels long after the settlements.