Category Archives: Administrative Law

Amid Storm of Controversy, SEC Adopts Final Climate Disclosure Rules

by Stephen A. Byeff, Ning Chiu, Joseph A. Hall, Margaret E. Tahyar, Ida Araya-Brumskine, Loyti Cheng, Michael Comstock, and David A. Zilberberg

photos of authors

Top from left to right: Stephen A. Byeff, Ning Chiu, Joseph A. Hall, Margaret E. Tahyar.
Bottom left to right: Ida Araya-Brumskine, Loyti Cheng, Michael Comstock, and David A. Zilberberg. (Photos courtesy of Davis Polk & Wardwell LLP).

Changes from the proposal include elimination of Scope 3 disclosures, scaled back attestation requirements, additional materiality qualifiers and narrower financial statement triggers. Given the lack of explicit congressional authorization for this new sweeping disclosure regime, its political sensitivity, complexity, cost and the substantial challenges already underway in federal courts, we anticipate rapid developments and possibly confusing stops and starts to unfold over the coming weeks.

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SEC Issues Long-Awaited Climate-Related Disclosure Rule

by Eric T. Juergens, Benjamin R. Pedersen, Paul M. Rodel, Kristin A. Snyder, Caroline N. Swett, Ulysses Smith, Michael Keene, Mie Morikubo, Michael Pan, Amy Pereira, and Maayan G. Stein

photos of authors

Top left to right: Eric T. Juergens, Benjamin R. Pedersen, Paul M. Rodel, Kristin A. Snyder, Caroline N. Swett, and Ulysses Smith. Bottom left to right: Michael Keene, Mie Morikubo, Michael Pan, Amy Pereira, and Maayan G. Stein. (Photos courtesy of Debevoise & Plimpton LLP).

On March 6, 2024, the U.S. Securities and Exchange Commission (“SEC”) adopted a long-awaited final rule, The Enhancement and Standardization of Climate-Related Disclosures for Investors, which will require registrants, including foreign private issuers (“FPIs”),[1] to disclose extensive climate-related information in their registration statements and periodic reports (the “Final Rule”). The Final Rule is intended to facilitate the disclosure of “complete and decision-useful information about the impacts of climate-related risks on registrants” and to improve “the consistency, comparability, and reliability of climate-related information for investors.” The Final Rule constitutes one of the most significant changes ever to SEC disclosure requirements, and is expected to face legal challenges. The Final Rule is available here and the accompanying fact sheet is available here.

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New Impersonator Rule Gives FTC a Powerful Tool for Protecting Consumers and Businesses

by Lesley Fair

photo of the author

Lesley Fair (photo courtesy of the author)

To turn the old adage on its head, imitation is the insincerest form of falsity. After years of fighting back against scammers who impersonate government agencies and companies, the FTC proposed a Trade Regulation Rule on Impersonation of Government and Businesses. The Rule would allow the FTC to recover consumer redress from impersonators or to seek civil penalties against those who violate the Rule. After a painstaking process of considering public comments about the proposal, the FTC just published a Final Rule  – and we think it’s an important step in the fight against this form of fraud. Continue reading →

Biden Administration Issues Sweeping Executive Order Directing Federal Agencies to Examine and Address Risks of Artificial Intelligence

by William Savitt, Mark F. Veblen, Kevin S. Schwartz, Noah B. Yavitz, and Courtney D. Hauck

Photos of the authors

From left to right: William Savitt, Mark F. Veblen, Kevin S. Schwartz, Noah B. Yavitz, and Courtney D. Hauck (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

On Monday, the Biden Administration issued a long-awaited executive order on artificial intelligence, directing agencies across the federal government to take steps to respond to the rapid expansion in AI technology. The order attempts to fill a gap in national leadership on AI issues, with Congress showing little progress on any comprehensive legislation. The order mandates regulatory action that could affect companies throughout the domestic economy, including: Continue reading →

DC Circuit Enjoins FINRA Disciplinary Proceeding, Questions Constitutionality of Hearing Officers

by Sara Raisner and Mark Lanpher

Photos of the authors

Sara Raisner and Mark Lanpher (Photos courtesy of Shearman & Sterling)

On July 5, the United States Court of Appeals for the D.C. Circuit granted an emergency injunction blocking the Financial Industry Regulatory Authority (“FINRA”) from halting the securities business of Alpine Securities Corporation (the “Company”) through an expedited hearing process pending the Company’s appeal challenging the constitutionality of FINRA’s enforcement proceedings.  Alpine Securities Corporation, et al v. Financial Industry Regulatory Authority, Inc., 1:23-cv-01506-BAH (July 5, 2023).  While noting that this was not a decision on the merits, the court found that the Company had shown a likelihood that it will succeed on the merits in its challenge to the structure of FINRA enforcement actions, having at this early stage “raised a serious argument that FINRA impermissibly exercises significant executive power.”

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FTC Diminishes Role of Administrative Law Judge

by Jonathan M. Moses, Nelson O. Fitts, and Adam L. Goodman

Photos of the authors

From left to right: Jonathan M. Moses, Nelson O. Fitts, and Adam L. Goodman (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

Recently, the FTC quietly issued a final rule modifying its internal procedures to diminish the role of its Administrative Law Judge.  The ALJ adjudicates, among other things, the agency’s challenges to mergers and acquisitions under the antitrust laws.  The move is of a piece with the agency’s agenda under Chair Lina Khan—on which we have commented here, here, and here—and underscores the significance of numerous pending challenges to the constitutionality of the FTC’s in-house adjudicative process. 

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Legal Dispute Surrounding Abortion Pill Has Significant Implications for Broader Healthcare Industry

by Andrew L. Bab, Maura Kathleen Monaghan, Paul D. Rubin, Shannon Rose Selden, Kim T. Le, Jacob W. Stahl, Adam Aukland-Peck, Prakriti Luthra, Melissa Runsten, and Charlotte Blatt

From top left to right: Andrew L. Bab, Maura Kathleen Monaghan, Paul D. Rubin, Shannon Rose Selden, and Kim T. Le.
From bottom left to right: Jacob W. Stahl, Adam Aukland-Peck, Prakriti Luthra, Melissa Runsten, and Charlotte Blatt. (Photos courtesy of Debevoise & Plimpton LLP)

On November 18, 2022, the Alliance for Hippocratic Medicine and several other plaintiffs (“Plaintiffs”) filed suit in federal court against the Food and Drug Administration (the “FDA”), seeking to overturn the FDA’s approval of mifepristone, a drug commonly used for medication abortions, as well as in the management of miscarriage and in the treatment of certain diseases (the “AHM Litigation”). After expedited briefing and a hearing, Northern District of Texas Judge Matthew Kacsmaryk issued a preliminary order that would effectively remove mifepristone from the market nationwide for use in the termination of pregnancy. The court signaled its belief that both the FDA’s initial approval and its subsequent decision to eliminate certain restrictions on its use were arbitrary and capricious because the FDA had allegedly failed to consider relevant safety data.

While the merits of this case have yet to be fully litigated—and the Supreme Court has temporarily preserved the status quo—this case may have significant implications for the broader healthcare industry, including FDA-regulated entities as well as providers, insurers, and even companies that subsidize healthcare for their employees.

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AI Regulation in Europe

by Patricia Ernst, Alistair Maughan, and Georgia Wright

It has been a busy summer for followers of the various European regulatory proposals to introduce a regulatory framework for the use of artificial intelligence in Europe. The EU is trying to resolve internal differences in approach to regulation, while the proposals published by the UK overtly take a more light-touch, pro-innovation approach.

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California’s Age-Appropriate Design Code Act Expands Businesses’ Privacy Obligations Regarding Minors

by Avi Gesser, Johanna N. Skrzypczyk, Michael R. Roberts, Michael J. Bloom, Martha Hirst, and Alessandra G. Masciandaro

On September 15, 2022, California Governor Gavin Newsom signed into law the bipartisan AB 2273, known as the California Age-Appropriate Design Code Act (“California Design Code”). The California Design Code aims to protect children online by imposing heightened obligations on any business that provides an online product, service, or feature “likely to be accessed by children.” Governor Newsom stated that he is “thankful to Assemblymembers Wicks and Cunningham and the tech industry for pushing these protections and putting the wellbeing of our kids first.”  The California Design Code’s business obligations take effect on July 1, 2024, though certain businesses must complete Data Protection Impact Assessments “on or before” that date.

In this post, we outline the California Design Code and its compliance requirements, compare it to pre-existing privacy regimes, and conclude with key takeaways for businesses to keep in mind as they adapt to the ever-changing privacy landscape.

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SCOTUS Overrules Roe v. Wade – Part IV: The Impact of Dobbs on Data Privacy – FTC v. Kochava

by Shoba Pillay, Madeleine V. Findley, Ann M. O’Leary, Anne Cortina Perry, Dawn L. Smalls, Alison Stein, and Philip B. Sailer

The Federal Trade Commission (FTC) recently filed a complaint against a data broker alleging that the collection and sale of precise location data significantly harms consumers, especially if the data contains information regarding travel to and from specific sensitive locations, such as reproductive healthcare clinics. The outcome of the case could have a substantial impact on the FTC’s authority to enforce consumer protection laws and will likely inform how companies handle consumer data to which they have access. The FTC’s complaint follows guidance the Biden administration issued to federal agencies, including the FTC, to take actions to protect consumers’ privacy in connection with reproductive healthcare services  after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (“Dobbs”)[1]. The outcome of the case could have a substantial impact on the sale and collection of consumer location data and the FTC’s authority to enforce consumer privacy protections.

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