Jul 17, 2024

Chevron Deference & Statutory Stare Decisis – Banishing the Specter of Chevron

In Loper Bright Enterprises v. Raimondo, the Supreme Court eliminated the Chevron doctrine, which for 40 years directed federal courts to “defer” to Executive Branch agencies in interpreting federal statutes.  144 S.Ct. 2244 (2024).  During that 40-year period, federal agencies promulgated countless regulations touching a wide swath of public and private affairs. Indeed, the Code of Federal Regulations (“CFR”) currently spans over 200,000 pages. Illustrating Chevron’s importance, in a 2015 survey of agency personnel, ninety percent of Executive Branch rule drafters self-reported that Chevron played a role in their drafting decisions.  Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan…. Read more

Jul 12, 2024

Amendments to California’s Private Attorneys General Act

For years, California employers have struggled to deal with claims under the state’s Private Attorneys General Act (“PAGA”)(Labor Code §§ 2699, et seq.), known – without affection – in the early days as the “Sue Your Boss” law.  The law authorizes private citizens to essentially step into the state’s shoes and sue for violations of the California Labor Code.  On July 1, 2024, Governor Newsom signed legislation that significantly limits a private citizen’s ability to bring PAGA claims, expands the ability of the courts to manage PAGA claims, enhances the employer’s opportunity to remedy problems, and reduces the available PAGA… Read more

Jul 1, 2024

Chevron Doctrine Overruled – Potential Impacts on Plan Sponsors and Employee Benefit Plans

In an opinion announced on June 28, 2024, the Supreme Court overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, which set forth the decades-old Chevron doctrine (also known as Chevron deference). The doctrine required a court to give deference to a government agency’s reasonable interpretation of an ambiguous statute even if such reviewing court read the statute differently. The Supreme Court, in Loper Bright Enterprises v. Raimondo, has changed the way courts in the future will look at certain government agency decisions, specifically holding that the Administrative Procedure Act requires courts to exercise their independent judgment when deciding whether… Read more

Jul 1, 2024

Supreme Court Decides Judges, Not Agencies, Will Interpret the Law

In Loper Bright Enterprises v. Raimondo, 603 U.S. ____ (2024).  the Supreme Court overturned Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.  467 U.S. 837 (1984). In so doing, the Court affirmed the fundamental principle that federal courts, not Executive Branch agencies, have final authority “to say what the law is.”  Marbury v. Madison, 1 Cranch 137, 177 (1803). Since the New Deal era, Congress has relied upon Executive Branch agencies—like the Securities and Exchange Commission, the Environmental Protection Agency, or the Food and Drug Administration—to regulate American life and business. To accomplish this result, Congress passes so-called “organic”… Read more

May 29, 2024

HHS Final Rule Aims to Bring Part 2 Into Alignment with HIPAA

In early 2024, the U.S. Department of Health and Human Services (HHS) issued a final rule (“Final Rule”) amending the regulations in 42 C.F.R. part 2 (“Part 2”) which governs the confidentiality and privacy of substance use disorder (SUD) records. The amendments aim to bring Part 2 regulations more in line with the rules under the Health Insurance Portability and Accountability Act (“HIPAA”), which governs the use and disclosure of protected health information. Background: As noted above, Part 2 protects the privacy rights of people seeking treatment for SUD. The law is designed to reassure patients that sharing information about… Read more

May 29, 2024

New HIPAA Privacy Protections for Reproductive Health Care Records Impact Plan Sponsors

Recent amendments to the HIPAA Privacy Rule strengthening the rule’s protections for reproductive health care records require group health plan sponsors to update their HIPAA compliance materials by December 23, 2024. Limits on Use and Disclosure.  Issued in response to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and subsequent state legislative activity, the intent of the new rule is to protect the privacy of a person seeking reproductive health care services, including contraception, abortion care, and assisted reproductive technology services. Specifically, the rule prohibits a group health plan from disclosing plan records related to lawfully… Read more

May 21, 2024

FTC Rule Banning Most Non-Competes Would Outlaw Forfeiture Provisions

The Federal Trade Commission (“FTC”) recently issued a Final Rule (the “FTC Rule”) that, unless invalidated by the courts, will soon prohibit most non-compete provisions.  In its current form, the FTC Rule will cover not only covenants that prohibit working for a competitor but also provisions that call for the forfeiture of compensation, severance or benefits if a former worker competes. What Does the FTC Rule Provide? General; Effective Date.  On April 23, 2024, the FTC issued a Final Rule banning most non-compete provisions between workers (e.g., employees, independent contractors, interns and volunteers) and employers, as an “unfair method of… Read more

May 8, 2024

FERC Proposes Prohibiting Reactive Power Compensation

On March 21, 2024, the Federal Energy Regulatory Commission (FERC) proposed rulemaking [1] that will change the way in which generators receive compensation. Specifically, FERC proposed to prohibit compensation for reactive power produced within the standard power factor range. Though it has been the standard for transmission providers to compensate generators for reactive power, FERC decided that this compensation is unjust and unreasonable. [2] The proposed rule states that: transmission providers would be required to pay an interconnection customer for reactive power only when the transmission provider asks the interconnection customer to operate its facility outside the standard power factor… Read more

Apr 26, 2024

DOL Finalizes Investment Fiduciary Rule

On Tuesday, April 23, 2024, the Department of Labor (the “DOL”) issued final regulations regarding investment fiduciary obligations and the definition of an “Investment Advice Fiduciary” (the “Final Regulations”) under the Employee Retirement Income Security Act of 1974 (“ERISA”). We discussed the proposed fiduciary rules published in October in a past Client Alert. The Final Regulations take effect on September 23, 2024. While the final regulations are more narrow than both the regulations proposed last October and the final regulations that were invalidated by the Fifth Circuit Court of Appeals in 2018, they almost surely will be challenged in federal… Read more

Apr 24, 2024

The FTC’s New Rule Bans Majority of Non-Compete Agreements

Introduction On April 23, 2024, the Federal Trade Commission, chaired by Lina Khan, passed a comprehensive ban on non-compete agreements. The FTC has determined that “non-competes are an unfair method of competition” and that a business conducts an unfair method of competition by entering into or enforcing non-competes with workers. “Workers” notably includes a broad swath of individuals, including employees, independent contractors, externs, interns, volunteers, apprentices, and sole proprietors who provide a service to a person. According to the FTC, one in five Americans will be directly affected by the new rule. The FTC’s focus on combating unfair methods of… Read more