Articles Posted in Uncategorized

On May 9, the U.S. Court of Appeals for the District of Columbia issued a significant ruling in Kahl v. Bureau of National Affairs, Inc. The Court of Appeals addresses (i) whether Yorie Von Kahl is a public figure for First Amendment purposes; and (ii) if so, whether he has produced sufficient evidence of actual malice by the Bureau of National Affairs, Inc. (BNA) to overcome BNA’s motion for summary judgment.

Some of these issues may play a role in a defamation lawsuit that is now before the local District of Columbia courts, Michael Mann v. Competitive Enterprise Institute, which concerns the hotly debated topic of climate change and global warming. On December 22, 2016, the District of Columbia Court of Appeals held that a jury could reasonable conclude that articles published in the National Review magazine “were false, defamatory and published with actual malice.”

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In U.S. v. Brownstein, the U.S. Court of Appeals for the DC Circuit, reversing the District Court, held that a federal law regulating conduct in the Supreme Court Building, 40 U.S.C. § 6134, which prohibits “harangues and orations” during oral argument, is constitutionally infirm.  On April 1, 2015, the defendants interrupted oral argument to announce their displeasure for the Supreme Court’s ruling in the Citizens United v. Federal Election Commission, a political speech case.  Noting that the defendants had fair notice of the rules governing conduct in this area, the DC Circuit, citing the movie “My Cousin Vinny,” concluded that a” person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior.”

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Today, our colleagues Jenny Sheng and Julian Zou published a client alert discussing China’s recent restrictions on outbound investments by Chinese companies in certain industries. Among other things, they encourage Chinese firms and foreign investors engaged in overseas investments to be aware of these new trends and to prepare to adjust their strategic plans and overseas activities. The alert is titled China’s Recent Restrictions on Outbound Investments by Chinese Companies.

On August 17, 2016, the Fourth District Court of Appeals sitting in San Antonio held, in a 2 to 1 decision, that a City of Laredo ordinance prohibiting the distribution of “single use” plastic bags at check-out counters in order to reduce litter was preempted by state law, namely, Section 361.0961 of the Texas Solid Waste Disposal Act (SWDA). The case is Laredo Merchants Association v. City of Laredo, and it could be important for many Texas cities coping with solid waste management issues.

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Can the federal government at times and, in all places, commandeer the states to act in a certain way? “Commandeering” refers to a federal requirement that state officials enact, administer, or enforce a federal regulatory program. There are limits to the federal government’s constitutional authority to do so, which are discussed in a recent decision by the U.S. Court of Appeals for the Third Circuit. On August 9, the Court of Appeals held that a 2014 New Jersey law, which partially repealed the state’s prohibitions on sports betting, was preempted by the federal Professional and Amateur Sports Protection Act.  Consequently, the federal law prohibiting sports betting will prevail in New Jersey, where the Legislature was hoping to find a way to generate more revenues for its casinos and racetracks. The en banc Court of Appeals rejected New Jersey’s arguments that the federal law was unconstitutional because it “commandeered” the states to act in a way that violates the Constitution. This case is NCAA v. Governor of New Jersey. Of interest, the U.S. Supreme Court has held that, under the commandeering doctrine, the federal government cannot compel or coerce the states, as separate sovereigns, to enact legislation demanded by the federal government.

The federal Consumer Financial Protection Bureau (CFPB) was urged this week by some in Congress to speed up its rulemaking aimed at arbitration provisions in consumer contracts used by companies offering payment services or financial products to consumers. In May, the preliminary rule was released. In Arbitration Provisions Mauled by Consumer Watchdog, my colleagues Amy Pierce, Andrew Caplan, and I discussed the proposed rule and the potential new reality for all consumer facing companies. At the heart of the proposal, the CFPB would ban consumer financial services providers from requiring consumers to waive class action rights in connection with pre-dispute arbitration clauses. (In a minor victory for the industry, the CFPB has not outright banned pre-dispute arbitration agreements—at least not yet.)

Additional Sources: CFPB’s Report to Congress: To Arbitrate Consumer Financial Services Claims or Not; CFPB’s Arbitration Study—A Warning to Consumer Financial Service Companies

Photo:  CafeCredit.com, CFPB, Uploaded June 13, 2016 – Creative Commons

My colleague Mark Elliott, in Open Wide: FOIA Reform Expands Public Access to U.S. Government Information, discusses the bipartisan Freedom of Information Improvement Act of 2016 (S. 337) signed into law by President Obama’s on June 30. The bill’s most notably requirement is that the government operate under a “presumption of openness” and help protect the public from government secrecy. Its goal otherwise is to make it more difficult for agency officials to withhold government records sought under the Freedom of Information Act (aka FOIA).

Photo: J. Albert Bowden II, Keep Calm and Use FOIA, Taken April 1, 2014 – Creative Commons