Category Archives: Administrative Law

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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Deference and its Discontents: The Supreme Court’s Bid to Remake the Administrative State

by David Slovick

To surprisingly little fanfare, on June 15 the U.S. Supreme Court issued a decision that took square aim at the federal administrative state, fulfilling in part the promise of a newly conservatized supreme bench and realizing in part one of the federal bureaucracy’s perennial fears. The facts of the case, American Hospital Association v. Becerra, weren’t sufficiently sensational to attract much attention; the underlying dispute involved routine payments made to hospitals by the federal government as part of its Medicare reimbursement program. But the knock-on effect the decision will have in other areas of administrative law, and its long-range political implications, should have made government watchers sit up and take note.

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