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September 9, 2019 |
Law360 Names Seven Gibson Dunn Lawyers as 2019 Rising Stars

Seven Gibson Dunn lawyers were named among Law360’s Rising Stars for 2019 [PDF], featuring “attorneys under 40 whose legal accomplishments transcend their age.”  The following lawyers were recognized: Washington D.C. partner Chantale Fiebig in Transportation, San Francisco partner Allison Kidd in Real Estate, Washington D.C. associate Andrew Kilberg in Telecommunications, New York associate Sean McFarlane in Sports, New York partner Laura O’Boyle in Securities, Los Angeles partner Katherine Smith in Employment and Century City partner Daniela Stolman in Private Equity. Gibson Dunn was one of three firms with the second most Rising Stars. The list of Rising Stars was published on September 8, 2019.

August 15, 2019 |
Gibson Dunn Lawyers Recognized in the Best Lawyers in America® 2020

The Best Lawyers in America® 2020 has recognized 158 Gibson Dunn attorneys in 54 practice areas. Additionally, 48 lawyers were recognized in Best Lawyers International in Belgium, Brazil, France, Germany, Singapore, United Arab Emirates and United Kingdom.

July 1, 2019 |
Best Lawyers in France 2020 Recognizes 16 Gibson Dunn Attorneys

Best Lawyers in France 2020 has recognized 16 Gibson Dunn attorneys as leading lawyers in their respective practice areas: Ahmed Baladi – Information Technology Law, Intellectual Property Law, Privacy and Data Security Law and Telecommunications Law; Nicolas Baverez – Administrative Law, Public Law and Regulatory Practice; Maïwenn Béas – Public Law; Amanda Bevan-de Bernède – Banking and Finance Law and Investment; Eric Bouffard – International Arbitration; Bertrand Delaunay – Mergers and Acquisitions Law and Private Equity Law; Jérôme Delaurière – Tax Law; Jean-Pierre Farges – Arbitration and Mediation, Banking and Finance Law, Insolvency and Reorganization Law and Litigation; Pierre-Emmanuel Fender - Insolvency and Reorganization Law; Benoît Fleury – Corporate Law; Bernard Grinspan – Corporate Law and Information Technology Law; Ariel Harroch – Corporate Law, Mergers and Acquisitions Law, Private Equity Law and Tax Law; Patrick Ledoux – Corporate Law; Vera Lukic – Information and Technology Law; Judith Raoul-Bardy – Corporate Law; and Jean-Philippe Robé – Banking and Finance Law, Corporate Law and Finance Law. The list was published on July 1, 2019.  

June 28, 2019 |
Supreme Court Sends 2020 Census Citizenship Question Back to the Department of Commerce, Citing Contrived Rationale

Click for PDF Decided June 27, 2019 Department of Commerce v. New York, No. 18-966

Yesterday, the Supreme Court held that the Secretary of Commerce’s decision to reinstate a citizenship question on the 2020 census violates the Administrative Procedure Act because the Secretary’s stated rationale—though reasonable and reasonably explained—was contrived.

Background: To apportion Members of the House of Representatives among the States, the Constitution requires an “Enumeration” of the population every ten years, “in such Manner” as Congress “shall by Law direct.” Congress enacted the Census Act and delegated to the Secretary of Commerce the task of conducting the census “in such form and content as he may determine.” 13 U.S.C. § 141(a). In every census between 1820 and 1950, all households were asked about citizenship or place of birth. Since 1950, however, only some households have been asked these questions. Last year, the Secretary of Commerce announced that the 2020 census would reinstate a question about citizenship in order to collect data to aid the government in enforcing the Voting Rights Act. A group of state and local governments filed suit, alleging that the Secretary’s decision violates the Enumeration Clause and the Administrative Procedure Act. The district court dismissed the Enumeration Clause claim, but authorized discovery outside the administrative record on the other claims. The district court then held that the Secretary’s decision was not supported by the evidence before him, rested on a pretextual basis, and violated the Census Act.  The Secretary appealed directly to the Supreme Court.

Issue:  Did the Secretary’s decision to reinstate a citizenship question on the 2020 census violate the Administrative Procedure Act?  

Court’s Holding:  Yes. Although the Secretary’s decision was reasonable and supported by the evidence, the district court was warranted in remanding the case to the agency because the Secretary’s stated rationale was contrived.

“Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.

Chief Justice Roberts, writing for the majority

What It Means:
  • A majority of the Court—the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan—agreed that the Secretary’s explanation was contrived.  This aspect of the Court’s decision creates a potentially significant new basis for challenging discretionary administrative actions, at least where there is strong evidence of pretext in the administrative record.
  • The Court acknowledged the general rule that judges generally avoid inquiring into “executive motivation,” but relied on a “narrow exception” that permits such inquiry “[o]n a strong showing of bad faith or improper behavior.” Though the Court could point to “no particular step” in the administrative process that was “inappropriate or defective,” it reasoned that “the Secretary began taking steps to reinstate a citizenship question about a week into his tenure,” yet did not identify a need for census data to enforce the Voting Rights Act until much later.
  • The Court also held that the Secretary’s decision did not violate the Enumeration Clause.  That provision affords Congress “virtually unlimited discretion” in conducting the census. Congress, in turn, has properly “delegated its broad authority over the census to the Secretary.”  Here, the Chief Justice joined with Justices Thomas, Alito, Gorsuch, and Kavanaugh to form a 5-4 majority.
  • Justice Thomas wrote an opinion concurring in part and dissenting in part, which Justices Gorsuch and Kavanaugh joined.  He viewed the Court’s holding as “an unprecedented departure from our deferential review of discretionary agency decisions”—one that, “if taken seriously as a rule of decision . . . would transform administrative law.” The Court’s decision was notable because it marked “the first time ever” that the Court has “invalidated an agency action solely because it questions the sincerity of an agency’s otherwise adequate rationale.”  Justice Thomas worried that the Court “has opened a Pandora’s box of pretext-based challenges in administrative law.” Given the nature of decisionmaking in the Executive Branch, “[o]pponents of future executive actions can be expected to make full use of the Court’s new approach.”
  • Justice Breyer wrote an opinion concurring in part and dissenting in part, which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Breyer believed that even if the Secretary’s rationale was not contrived, his decision still violated the Administrative Procedure Act because the evidence “indicated that asking the question would produce citizenship data that is less accurate, not more.”
  • Justice Alito also wrote separately because he would have held that the Secretary’s decision was “committed to agency discretion by law” and thus not subject to judicial review.  “To put the point bluntly,” Justice Alito wrote, “the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

As always, Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court.  Please feel free to contact the following practice leaders:

Appellate and Constitutional Law Practice

Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com Mark A. Perry +1 202.887.3667 mperry@gibsondunn.com

Related Practice: Administrative Law & Regulatory Practice

Eugene Scalia +1 202.955.8206 escalia@gibsondunn.com Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com
© 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

June 26, 2019 |
Reinforcing Limits On Its Use, Supreme Court Upholds Auer Deference In Veterans Affairs Dispute

Click for PDF Decided June 26, 2019 Kisor v. Wilkie, No. 18-15

Today, the Supreme Court reaffirmed that an agency’s reasonable interpretation of its own ambiguous regulations is entitled to deference.

Background: In 1982, the Department of Veterans Affairs (“VA”) denied a Vietnam War veteran’s claim for benefits after concluding that the veteran did not suffer from post-traumatic stress disorder (“PTSD”). When the veteran again sought benefits in 2006, the VA changed course, this time awarding benefits after concluding that the veteran did suffer from PTSD. This case arises out of a disagreement as to whether the veteran was also entitled to retroactive payments under a VA regulation permitting such payments when the VA fails to consider “relevant” records—in this case, records describing the veteran’s combat experience. The VA contends that the newly submitted records are not “relevant” because they do not go to the reason for its 1982 denial of benefits, i.e., that the veteran did not have PTSD.  Citing both Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997)—which require federal courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations—the Federal Circuit deferred to the VA’s interpretation of “relevant,” and affirmed the VA’s denial of retroactive payments.

Issue: Should the Supreme Court overrule Bowles v. Seminole Rock & Sand Co, 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997), which require courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations? 

Court’s Holding:  No.  If, after exhausting the traditional tools of construction, a court concludes that a regulation is genuinely ambiguous, that the agency’s interpretation is reasonable, and that the context of the agency interpretation entitles it to controlling weight, a court must defer to the agency’s interpretation.

“Auer deference retains an important role in construing agency regulations.  But even as we uphold it, we reinforce its limits.

Justice Kagan, writing for the Court

What It Means:
  • Although four justices would have overruled Auer, the majority declined to do so.  Nonetheless, the Court “reinforce[d]” the limits on when such deference can be deployed.  These limits are robust:  “When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. . . .  But that phrase ‘when it applies’ is important—because it often doesn’t.”
  • First, a court may not afford Auer deference unless the regulation is genuinely ambiguous.  This requires exhausting “all the ‘traditional tools’ of construction,” as even “hard interpretative conundrums . . . can often be solved.”  Second, a court must conclude that the agency’s reading of the ambiguous regulation is “reasonable,” which the Court emphasized “is a requirement an agency can fail.”  Finally, a court must “make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.”  In undertaking this inquiry, courts should consider a variety of factors, including whether the agency’s interpretation constitutes the agency’s “official position,” whether the interpretation “implicate[s]” the agency’s “substantive expertise,” and whether the interpretation reflects a “fair and considered judgment,” as compared to a “convenient litigating position.”
  • The Court’s discussion of stare decisis could have repercussions in other cases, as well. The Court highlighted three reasons for declining to overrule Auer and Seminole Rock.  First, those precedents have long been applied by lower courts. Second, overruling the precedents would cast doubt on many settled constructions of rules.  And third, Congress remains free to alter the effect of Auer and Seminole Rock through legislation. As Justice Gorsuch’s opinion concurring in the judgment states, “the majority retains Auer only because of stare decisis.”
  • The Court did not foreclose the possibility of revisiting other questions involving deference to agencies, including the Chevron doctrine under which courts generally defer to agency interpretations of ambiguous statutes. As the Chief Justice’s concurring opinion makes clear, “[i]ssues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.” For this reason, the Chief Justice does “not regard the Court’s decision today to touch upon the latter question,” a point with which Justice Kavanaugh agreed in his own opinion concurring in the judgment.

As always, Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court.  Please feel free to contact the following practice leaders:

Appellate and Constitutional Law Practice

Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com Mark A. Perry +1 202.887.3667 mperry@gibsondunn.com

Related Practice: Administrative Law & Regulatory Practice

Eugene Scalia +1 202.955.8206 escalia@gibsondunn.com Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com
© 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

June 20, 2019 |
Supreme Court Avoids Answering Question On Hobbs Act Deference To FCC Orders

Click for PDF Decided June 20, 2019 PDR Network, LLC v. Carlton & Harris Chiropractic Inc., No. 17-1705 Today, the Supreme Court declined to resolve whether the Hobbs Act requires district courts to follow FCC Orders construing the Telephone Consumer Protection Act (“TCPA”), remanding for the court of appeals to consider “two preliminary issues.” Background: Petitioners (collectively, “PDR Network”) sent healthcare providers an unsolicited fax offering free copies of an e-book about prescription drugs.  One of the providers sued PDR Network for violating the TCPA, which prohibits any person from faxing “unsolicited advertisement[s].”   47 U.S.C. § 227(b)(1)(C).  The district court dismissed the case, refusing to follow a 2006 FCC Order stating that faxes promoting free goods or services are an “unsolicited advertisement” under the TCPA.  Reversing, the Fourth Circuit reasoned that the Hobbs Act, which gives federal courts of appeals “exclusive jurisdiction” to determine the validity of certain FCC “final orders,” 28 U.S.C. § 2342(1), required the district court to adopt and apply the FCC Order’s interpretation of the TCPA.

Issue: Whether the Hobbs Act requires district courts to follow FCC Orders construing the TCPA.

Court’s Holding:  The Court did not answer the question.  Instead, it remanded for the Fourth Circuit to determine (1) whether the FCC Order is a “legislative” or “interpretive” rule, and (2) whether PDR Network had a “prior” and “adequate” opportunity to challenge the FCC Order under the Administrative Procedure Act, 5 U.S.C. § 703.   

“[T]he extent to which the Order binds the lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the Court of Appeals.”

Justice Breyer, writing for the majority

What It Means:
  • The decision leaves unresolved whether the “exclusive jurisdiction” provision of the Hobbs Act requires district courts to adopt and follow an FCC Order interpreting the TCPA.
  • Under the Court’s holding, there are two ways the Fourth Circuit on remand might avoid answering the broader question presented.  First, if the FCC Order is an interpretive rule, not a legislative rule, then it would merely announce the agency’s construction of the statute and “may not be binding on the district court.”  Second, if PDR Network lacked a “prior” and “adequate” opportunity under the Administrative Procedure Act to challenge the FCC Order, 5 U.S.C. § 703, then PDR Network “may” be able to mount that challenge in the current proceeding, even if the FCC Order were a legislative rule.
  • Justice Kavanaugh wrote a concurring opinion that Justices Thomas, Alito, and Gorsuch joined.  He reasoned that the Hobbs Act neither bars PDR Network from challenging the FCC Order’s interpretation of the TCPA nor requires district courts to adopt the FCC’s interpretation.  Holding otherwise, Justice Kavanaugh continued, would improperly give the agency’s interpretation the legal force of a statute “no matter how wrong the agency’s interpretation might be.”
  • Justice Thomas also wrote a concurring opinion that Justice Gorsuch joined.  He reasoned that, if the Hobbs Act precludes district courts from independently construing the TCPA, then the Hobbs Act “would trench upon Article III’s vesting of the ‘judicial Power’ in the courts.”  Likewise, if the Hobbs Act requires district courts to give the force of law to an agency’s statutory interpretation, then it would violate Article I’s vesting of the legislative power in Congress.

As always, Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court.  Please feel free to contact the following practice leaders:

Appellate and Constitutional Law Practice

Allyson N. Ho +1 214.698.3233 aho@gibsondunn.com Mark A. Perry +1 202.887.3667 mperry@gibsondunn.com

Related Practice: Administrative Law & Regulatory Practice

Eugene Scalia +1 202.955.8206 escalia@gibsondunn.com Helgi C. Walker +1 202.887.3599 hwalker@gibsondunn.com

May 1, 2019 |
Gibson Dunn Named Best Regulatory Law Firm of the Year by GamblingCompliance

GamblingCompliance named Gibson Dunn “Best Regulatory Lawyer/Law Firm of the Year (North America)” at its 2019 GamblingCompliance Global Regulatory Awards.  The award recognized the firm’s “exceptional legal service and guidance to clients within the sector.” The results were announced at its annual dinner on May 1, 2019. Gibson Dunn’s Betting and Gaming Practice is one of the most preeminent betting and gaming legal practices worldwide, representing the most prestigious and influential clients in the industry across Europe, Asia and the Americas. We believe that the Gibson Dunn global betting and gaming practice provides our clients with a unique offering – no other global law firm can offer an award-winning regulatory and compliance capability alongside a market-leading transactional practice in the betting and gaming sector in the United Kingdom, the United States, Europe and the Asia-Pacific Region.

April 19, 2019 |
Gibson Dunn Ranked in Legal 500 EMEA 2019

The Legal 500 EMEA 2019 has recommended Gibson Dunn in 14 categories in Belgium, France, Germany and UAE.  The firm was recognized in Competition – EU and Global in Belgium; Administrative and Public Law, Dispute Resolution – Commercial Litigation Industry Focus – IT, Telecoms and the Internet, Insolvency, Insurance, Mergers and Acquisitions, and Tax in France; Antitrust, Compliance, Internal Investigations and Private Equity in Germany; and Corporate and M&A and Investment Funds in UAE. Chézard Ameer, Ahmed Baladi,  Jean-Pierre Farges and Dirk Oberbracht were all recognized as Leading Individuals. Jérôme Delaurière was listed as a “Next Generation Lawyer.”  

November 21, 2018 |
Gibson Dunn Ranked in the 2019 UK Legal 500

The UK Legal 500 2019 ranked Gibson Dunn in 13 practice areas and named six partners as Leading Lawyers. The firm was recognized in the following categories:

  • Corporate and Commercial: Equity Capital Markets
  • Corporate and Commercial: M&A – Upper Mid-Market and Premium Deals, £250m+
  • Corporate and Commercial: Private Equity – High-value Deals
  • Dispute Resolution: Commercial Litigation
  • Dispute Resolution: International Arbitration
  • Finance: Acquisition Finance
  • Finance: Bank Lending: Investment Grade Debt and Syndicated Loans
  • Human Resources: Employment – Employers
  • Public Sector: Administrative and Public Law
  • Real Estate: Commercial Property – Hotels and Leisure
  • Real Estate: Commercial Property – Investment
  • Real Estate: Property Finance
  • Risk Advisory: Regulatory Investigations and Corporate Crime
The partners named as Leading Lawyers are Sandy Bhogal – Corporate and Commercial: Corporate Tax; Steve Thierbach – Corporate and Commercial: Equity Capital Markets; Philip Rocher – Dispute Resolution: Commercial Litigation; Cyrus Benson – Dispute Resolution: International Arbitration; Jeffrey Sullivan – Dispute Resolution: International Arbitration; and Alan Samson – Real Estate: Commercial Property and Real Estate: Property Finance. Claibourne Harrison has also been named as a Next Generation Lawyer for Real Estate: Commercial Property.

May 25, 2018 |
Who’s Who Legal Recognizes Six Gibson Dunn Partners

Six Gibson Dunn partners were recognized by Who’s Who Legal in their respective fields. In Who’s Who Legal France 2018 guide Paris partners Nicolas Baverez and Jean-Pierre Farges were recognized in Administrative Litigation and Restructuring & Insolvency respectively. In Who’s Who Legal Restructuring & Insolvency 2018 Los Angeles partners Robert Klyman and Jeffrey Krause, and New York partner Michael Rosenthal were listed. Additionally in the Who’s Who Legal Life Sciences 2018 guide Orange County partner William Rooklidge was recognized.  

April 18, 2018 |
Gibson Dunn Named Regulatory Law Firm of the Year by GamblingCompliance

GamblingCompliance named Gibson Dunn “Best Regulatory Lawyer or Law Firm of the Year” at its 2018 GamblingCompliance Global Regulatory Awards. The awards recognize “individuals and teams who have excelled in the field of regulatory compliance and responsible gambling initiatives.”  The results were announced at its second annual dinner on April 18, 2018.

March 19, 2018 |
D.C. Circuit Vacates Part of FCC’s 2015 TCPA Order in ACA International, et al. v. FCC, et al.

Click for PDF On March 16, 2018, the D.C. Circuit unanimously vacated part of the FCC's July 2015 Declaratory Ruling and Order, which vastly expanded the scope of the Telephone Consumer Protection Act of 1991 ("TCPA").[1]  The Court of Appeals rejected the FCC's effort to expose legitimate companies of all sizes and types to liability for simply attempting in good faith to communicate with customers who previously provided valid consent to be contacted. The TCPA prohibits calls to cellular phones by an "automatic telephone dialing system" ("ATDS") without the "prior express consent of the called party."[2]  The statute defines an ATDS as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers."[3] The FCC's 2015 order expanded the definition of an ATDS to include equipment that is not currently able to store or dial telephone numbers in a random or sequential fashion.  The order also permitted callers only one call before imposing strict liability for future calls when a number, without the caller's knowledge, has been reassigned from a person who previously consented to be contacted. The D.C. Circuit ruled for the petitioners—including the U.S. Chamber of Commerce, represented by Gibson Dunn—on two significant issues in the case.  First, the Court set aside the FCC's "utterly unreasonable" interpretation of the types of calling equipment that qualify as an ATDS.[4] The Court struck down that aspect of the FCC's order because it "fail[ed] to satisfy the requirement of reasoned decision-making" and "[t]he order's lack of clarity about which functions qualify a device as an autodialer compound[ed] the unreasonableness of the Commission's expansive understanding of when a device has the 'capacity' to perform the necessary functions."[5]  In particular, the court described the potential reach of the FCC's order to include all smartphones as "eye-popping."[6] Second, the Court set aside the FCC's one-call safe harbor as arbitrary.[7]  The Court concluded that the FCC "gave no explanation of why reasonable-reliance considerations would support limiting the safe harbor to just one call or message."[8]  Because the Court had "substantial doubt" that the FCC would have adopted its "treatment of reassigned numbers as a whole," it vacated that entire portion of the order.[9] The D.C. Circuit did uphold two other challenged portions of the order—the rule for revocation of consent and an exemption for healthcare-related calls.[10]  Nonetheless, the decision substantially reduces the increasing burden of class-action liability under the TCPA and helps to restore the open lines of communication necessary to consumers and businesses in our modern economy. Because the D.C. Circuit did not remand the matter to the FCC, the agency could commence a new proceeding to address the definition of an autodialer, and in the meantime courts may also seek to address that issue.  The FCC is currently slated to consider a request for further public comment on the creation of a database for reassigned numbers.[11]  As part of that process, the FCC is considering whether to afford protection against liability to callers who take advantage of such a resource.[12]  The FCC also has adopted "rules allowing providers to block calls from phone numbers on a Do-Not-Originate (DNO) list and those that purport to be from invalid, unallocated, or unused numbers."[13]


   [1]   ACA Int'l, et al. v. FCC, et al., No. 15-1211 (D.C. Cir. Mar. 16, 2018).
   [2]   47 U.S.C. § 227(b)(1)(A).
   [3]   Id. § 227(a)(1).
   [4]   ACA Int'l, No. 15-1211, slip op. at 19 (quoting Aid Ass'n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1174 (D.C. Cir. 2003)).
   [5]   Id. at 29.
   [6]   Id. at 16.
   [7]   Id. at 35.
   [8]   Id. at 36.
   [9]   Id. at 39–40 (quoting Am. Petroleum Inst. v. EPA, 862 F.3d 50, 71 (D.C. Cir. 2017)).
[10]   Id. at 5.
[11]   In re Advanced Methods to Target and Eliminate Unlawful Robocalls, Second Further Notice of Proposed Rulemaking, CG Dkt. No. 17-59 at ¶ 2 (circulated for tentative consideration at March 2018 open meeting), available at https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0301/DOC-349522A1.pdf; see also In re Advanced Methods to Target and Eliminate Unlawful Robocalls, Second Notice of Inquiry, 32 FCC Rcd 6007, 6013 ¶¶ 16, 18 (2017) (discussing database proposal).
[12]   In re Advanced Methods to Target and Eliminate Unlawful Robocalls, Second Further Notice of Proposed Rulemaking, CG Dkt. No. 17-59 at ¶ 30.
[13]   In re Advanced Methods to Target and Eliminate Unlawful Robocalls, Report and Order and Further Notice of Proposed Rulemaking, CG Dkt. No. 17-59 (Nov. 16, 2017), available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-151A1_Rcd.pdf.

The following Gibson Dunn lawyers assisted in preparing this client update: Helgi Walker and Brian Lipshutz. Gibson Dunn's lawyers are available to assist with any questions you may have regarding these issues.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, or the following leaders of the firm's Administrative Law and Regulation Practice: Eugene Scalia - Washington, D.C. (+1 202-955-8206, escalia@gibsondunn.com) Helgi C. Walker - Washington, D.C. (+1 202-887-3599, hwalker@gibsondunn.com)
© 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

March 18, 2018 |
Fifth Circuit Vacates Labor Department’s “Fiduciary Rule” “In Toto” in Chamber of Commerce of U.S.A., et al. v. U.S. Dep’t of Labor

Click for PDF On March 15, 2018, in a 2-1 opinion, the U.S. Court of Appeals for the Fifth Circuit struck down the U.S. Department of Labor's controversial "Fiduciary Rule."[1]  The Rule would have expanded who is a "fiduciary" under ERISA and the Internal Revenue Code, imposing significant new obligations and liabilities on broker-dealers and insurance agents who sell annuities to IRAs.  As the Fifth Circuit's opinion explained, the Department had "made no secret of its intent to transform the trillion-dollar market for IRA investments, annuities and insurance products, and to regulate in a new way the thousands of people and organizations working in that market."[2] The Fifth Circuit ruled for plaintiffs—the U.S. Chamber of Commerce, the Securities Industry and Financial Markets Association ("SIFMA"), the Financial Services Institute ("FSI"), the Financial Services Roundtable ("FSR"), the Insured Retirement Institute ("IRI"), and other leading trade associations—on each of their principal arguments.  Specifically, the Court reasoned that the Labor Department's new definition of "fiduciary" was inconsistent with the plain text of ERISA and the Internal Revenue Code, as well as with the common-law meaning of "fiduciary," which depends upon a special relationship of trust and confidence; that the Department impermissibly abused its authority to grant exemptions from regulatory burdens as a tool to impose expansive new duties that were beyond its power to impose; and that the rule impermissibly created private rights of action against brokers and insurance agents when Congress had not authorized those claims.  The Court therefore held that the Fiduciary Rule and the exemptions adopted alongside it were arbitrary, capricious, and unlawful under the Administrative Procedure Act ("APA"), and vacated them "in toto."[3] Under the APA, "vacatur" is a remedy by which courts "set aside agency action" that is arbitrary and capricious or otherwise outside of the agency's statutory authority.[4]  Its effect is to "nullify or cancel; make void; invalidate."[5]  Because the effect of vacatur is, in essence, to remove a regulation from the books, its effect is nationwide.  As the U.S. Court of Appeals for the D.C. Circuit has explained, "When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed."[6]  The Fifth Circuit's judgment, which is scheduled to take effect on May 7, thus will effectively erase the "fiduciary" rule from the books without geographical limitation. The Fifth Circuit's decision was the second ruling last week to address the Fiduciary Rule.  On March 13, the Tenth Circuit addressed a more limited challenge to one aspect of the Rule, specifically, the procedures and reasoning followed by the Department in regulating products known as "fixed indexed annuities."[7]  Although the Tenth Circuit rejected that challenge, it made clear it was not addressing two threshold issues that had not been presented:  whether the Labor Department had authority to promulgate the Rule and whether the Rule permissibly defined the term "fiduciary."  The March 15 decision of the Fifth Circuit now conclusively resolves those questions in the negative.  And because the Fifth Circuit vacated the Rule on grounds the Tenth Circuit did not address, no "circuit conflict" is presented by the two decisions.[8] Gibson Dunn represented the U.S. Chamber of Commerce, SIFMA, the FSI, FSR, and IRI, among other associations, in their successful challenge to the Fiduciary Rule.  The American Council of Life Insurers and the Indexed Annuity Leadership Council filed parallel actions through separate counsel at WilmerHale and Sidley Austin, and Gibson Dunn presented oral argument before the Fifth Circuit for all three cases.


   [1]   Chamber of Commerce of the U.S.A., et al. v. U.S. Dep't of Labor, et al., No. 17-10238, slip op. 46 (5th Cir. Mar. 15, 2018).
   [2]   Id. at 45.
   [3]   Id. at 46.
   [4]   5 U.S.C. § 706(2).
   [5]   Black's Law Dictionary (online 10th ed. 2014).  See, e.g., Kelso v. U.S. Dep't of State, 13 F. Supp. 2d 12, 17 (D.D.C. 1998) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950)) (explaining that "basic understandings of vacatur dramatize that, by definition, that which is vacated loses the ability to 'spawn[ ] any legal consequences'").
   [6]   Nat'l Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)).
   [7]   See Mkt. Synergy Grp. v. U.S. Dep't of Labor, et al., No. 17-3038 (10th Cir. Mar. 13, 2018)
   [8]   A third challenge to the Fiduciary Rule is currently being held in abeyance.  See Nat'l Ass'n for Fixed Annuities v. U.S. Dep't of Labor, et al., No. 16-5345 (D.C. Cir. Feb. 22, 2018) (holding case in abeyance pending joint status report within 10 days of the decision of the Fifth Circuit).

The following Gibson Dunn lawyers assisted in preparing this client update: Eugene Scalia, Jason Mendro, Andrew Kilberg and Brian Lipshutz. Gibson Dunn's lawyers are available to assist with any questions you may have regarding these issues.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, or the following authors: Eugene Scalia - Washington, D.C. (+1 202-955-8206, escalia@gibsondunn.com) Jason J. Mendro - Washington, D.C. (+1 202-887-3726, jmendro@gibsondunn.com) Please also feel free to contact the following practice group leaders: Administrative Law and Regulatory Practice: Eugene Scalia - Washington, D.C. (+1 202-955-8206, escalia@gibsondunn.com) Helgi C. Walker - Washington, D.C. (+1 202-887-3599, hwalker@gibsondunn.com) Labor and Employment Practice: Catherine A. Conway - Los Angeles (+1 213-229-7822, cconway@gibsondunn.com) Jason C. Schwartz - Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com) Executive Compensation and Employee Benefits Practice: Michael J. Collins - Washington, D.C. (+1 202-887-3551, mcollins@gibsondunn.com) Stephen W. Fackler - Palo Alto/New York (+1 650-849-5385/212-351-2392, sfackler@gibsondunn.com) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

February 22, 2018 |
EPA In The Trump Era: Settling Mandatory Duty Lawsuits

Washington, D.C. partner Avi Garbow is the author of "EPA In The Trump Era: Settling Mandatory Duty Lawsuits," [PDF] published by Law360 on February 22, 2018.

September 7, 2017 |
Difficultés objectives: La Cour de justice de l’Union européenne considère qu’à défaut de clause prévoyant la possibilité d’adapter, même de façon importante, un marché public au cours de son exécution

​Paris associate Grégory Marson is the author of "Difficultés objectives : La Cour de justice de l'Union européenne considère qu'à défaut de clause prévoyant la possibilité d'adapter, même de façon importante, un marché public au cours de son exécution, une transaction motivée par des difficultés objectives ne saurait avoir pour objet de le modifier de manière substantielle," [PDF] published in Concurrences on September 7, 2016. The commentary focuses on how the European Court of Justice considers that in the absence of a clause providing for the possibility to adapt, even significantly, a public procurement contract during its performance, a settlement agreement justified by the existence of objective hardship shall not be intended to result in a substantial modification of the contract.

May 24, 2017 |
Méthode de notation: Le Conseil d’État rappelle que le juge des référés précontractuels ne dispose pas du pouvoir d’annuler la procédure de passation d’un marché public de défense et qu’un pouvoir adjudicateur ne peut retenir une méthode de notation ayant

Paris associate Grégory Marson is the author of  Méthode de notation: Le Conseil d'État rappelle que le juge des référés précontractuels ne dispose pas du pouvoir d'annuler la procédure de passation d'un marché public de défense et qu'un pouvoir adjudicateur ne peut retenir une méthode de notation ayant pour effet de neutraliser la portée des critères de sélection des offres," [PDF] published in Concurrences on May 24, 2017. This article details how the French Supreme Administrative Court points out that the judge hearing requests for precontractual interim measures cannot cancel a public procurement procedure in the field of defence procurement and that the contracting authority cannot use a rating method, which have as its effect of neutralizing the scope of criteria for the selection of applications.

2016 Mid-Year E-Discovery Update

Our 2016 Mid-Year E-Discovery Update reflects that the e-discovery landscape today generally looks much better than has in several years.

March 7, 2017 |
Analysis of March 6, 2017 Executive Order on Immigration

Gibson Dunn previously issued several client alerts regarding President Trump's January 27, 2017, Executive Order restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes. This client alert addresses the replacement Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," signed on March 6, 2017.[1]  It also addresses a recent announcement suspending expedited processing of H-1B visas.

I.          Overview of March 6, 2017 Replacement Executive Order

The new order is in some regards narrower than the prior order, and its scope appears to be more clearly defined.  However, there is still some ambiguity as to the process for obtaining waivers, and the order continues to provide for the possible extension or expansion of the travel ban.  The order and the accompanying official statements also include considerably more material seeking to justify the provisions than contained in the prior order.[2] The Department of Homeland Security has released detailed Q&As[3] and a fact sheet regarding the new order;[4] additional guidance from the Department of State is expected.[5] Key features of the new order include:
  • Effective Date.  The effective date of the order is deferred for 10 days; the order goes into effect at 12:01 am ET on March 16, 2017.  Sec. 14.
  • Status of Prior Order.  The new order fully rescinds and replaces the January 27 order.  Sec. 13.
  • Travel Ban For 6 Countries.  Like the prior order, the new order suspends for 90 days entry for nationals of a number of Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Sec. 1(e).
  • Exclusions and Exceptions to Travel Ban.  The travel ban and related provisions have been narrowed and clarified in various respects:
    • Iraq.  Iraq is no longer identified among the affected countries.  The other six nations designated in the original order are still covered.  However, the order specifically calls for additional review when an Iraqi national who holds a visa applies for "admission," meaning upon arrival to the U.S.  Secs. 1(g), 4.
    • Lawful Permanent Residents.  Lawful permanent residents (green-card holders) are explicitly excluded from the order.  Sec. 3(b)(i).
    • Current Visa Holders.  Existing visas are not revoked by the order, and they can be used during the 90-day period otherwise covered by the order by the visa-holders under their existing terms, regardless of whether the visa-holder has previously been to the United States or is arriving for the first time.  Those who had a visa physically marked as cancelled as result of the January order are also entitled to admission.  Secs. 3(a), 12(c)-(d); Q&As 3, 5, 7.
    • Dual-Citizens.  Dual citizens of one of the designated nations are also explicitly excluded from the order provided that they are travelling on a passport of a country other than the six designated.  For example, a dual-citizen of Somalia and the United Kingdom would still be eligible for admission to the United States if travelling on his U.K. passport.  Sec. 3(b)(iv).
    • Refugees, Asylees, and Convention Against Torture.  Foreign nationals who are granted asylum status prior to the March 16 effective date, refugees already admitted, and those granted withholding of removal, advance parole, or protection under the Convention Against Torture are not barred from entry into the U.S. Sec. 3(b)(vi).  Note, however, that under existing law, individuals with those statuses may need certain advance permission or authorization if they wish to leave and return to the United States without jeopardizing that status.
    • Certain Diplomatic and Related Visas.  As in the January order, diplomatic and diplomatic-type visas, NATO visas, C-2 (United Nations) visas, and G-1 through G-4 visas are excluded from the order.  Sec. 3(b)(v)
  • Travel Ban Waivers.  The new order provides authority to certain Department of State and Homeland Security officials to grant waivers to the travel ban's limitations on a case-by-case basis.  The new order identifies nine scenarios in which such treatment "could be appropriate."  These include a variety of hardship scenarios which arose under the January order, such as those needing urgent medical care or those who can document that they have "provided faithful and valuable service" to the United States government (e.g. foreign translators).  Sec. 3(c).  Importantly, these are still case-by-case waivers, not automatic exemptions.  It is also not yet clear if individuals seeking waivers will be allowed to board flights to the U.S.
  • Suspension of Visa Interview Waiver Program.  As before, the Visa Interview Waiver program (often used by repeat business travelers from certain nations) is suspended.  Sec. 9.
  • Suspension of Refugee Admission Program.  As in the January order, the Refugee Admission Program is suspended for 120 days, with a cap of 50,000 entrants for the current fiscal year upon resumption.  Sec. 6.  Unlike the January order, the new order does not indefinitely halt refugee admissions from Syria or prioritize religious minorities upon resumption.  The treatment of those already granted refugee status but not yet in the United States is somewhat unclear.  The DHS Q&A says such individuals "whose travel was already formally scheduled by the Department of State … are permitted to travel to the United States and seek admission," and they are covered by the text of the carve-out in Section 3(b)(vi). See Q&A 10.  But the Q&A also says those individuals "are exempt from the Executive Order."  Q&A 27.  Admission thus may require a case-by-case waiver.
  • Possible Expansion and Extension.  Like the prior order, this order requires a global review to identify categories of individuals appropriate for further limitations.  Secs. 2(e)-(f).  Another provision requires re-alignment of any visa reciprocity programs, under which the United States offers visas of similar validity period and type (e.g. multiple-entry) on the basis of those offered to U.S. citizens.  Sec. 10.

II.        Impact on Current Litigation

There are approximately 20 active lawsuits challenging aspects of the January order.  Additional, key parts of that Order are currently subject to a preliminary injunction issued by the United States District Court for the Western District of Washington.  The Ninth Circuit declined to temporarily stay that injunction pending a fuller appeal.[6]  The Eastern District of Virginia has also issued a preliminary injunction against certain parts of the January order as it applies to Virginia residents and institutions. There are hearings and briefing deadlines scheduled in both the Washington and Ninth Circuit proceedings, as well as in many of the other cases.  Because the new order rescinds the old order, effective March 16, those challenges may become moot, and the Department of Justice has said it will be seeking dismissal.[7]  However, it is highly likely that some of the existing complaints and requests for relief will be amended to challenge the new ban.  New challenges to the newly announced Executive Order are also anticipated. It is difficult to predict how the courts will approach litigation, either substantively or procedurally.  Given that the new order does not go into effect until March 16, there will be opportunity for more substantive (although expedited) proceedings than was the case with the original order.  Gibson Dunn will continue to monitor challenges for possible impacts on the new order.

III.       Issues for Companies to Consider

As with the January order, there is no "one size fits all" approach for companies addressing employee and business issues related to the new Executive Order. Accordingly, companies should again evaluate whether they will need to develop strategies to deal with the impact of the replacement Executive Order, both internally and as it relates to potential shareholder and business relations. In the immediate term, companies should consider outreach to their employees, particularly those who are or may be affected by the Executive Order.  Companies should also consider whether plans or policies are needed for travel by executives, employees, or other stakeholders.  In many ways, the new order is clearer than the January order, but as we describe in more detail below it not clear how all aspects of the order will be implemented.  Accordingly, employers may want to consider the following:
  • Outreach to employees who may be affected.  Companies should consider proactively identifying and reaching out to all employees who may be affected.  As noted above, the Executive Order, on its face, applies to both immigrants and non-immigrants from the six covered countries.  Thus, employees traveling for business or leisure may be equally affected.  Note that different employees' immigration statuses may compel differing guidance on how to approach any issues that arise in the enforcement of the Order.
  • Outreach to employees who may have family members affected.  It is important to remember that some of your employees, even if not directly impacted by the Executive Order, will have family and loved ones who are or may be impacted.  Companies may consider providing counseling and support for employees with these concerns.
  • Communicating with employees.  Companies should consider identifying employees who frequently travel to and from the affected countries or who are visa holders from affected countries, to explain company plans with respect to the Executive Order.  Given issues that arose for travelers in connection with the implementation of the original Executive Order in January, employees from affected countries who are currently outside the United States, but have a legal right to enter, should be advised to stay in communication with individuals in the United States about their travel plans, in the event they have difficulty re-entering the country, and have a plan to obtain appropriate assistance in that event.
  • Identifying a point of contact.  Consider identifying a contact point for any employee questions or concerns regarding the Executive Order.  Furthermore, ensure that this contact is prepared to field questions from affected or potentially affected employees, to discuss visa renewal or travel to and from the affected countries, and to refer employees with specific issues to the appropriate resources.
  • Communicating with shareholders, business partners and other stakeholders.  Companies should consider whether communications with shareholders, business partners or other stakeholders regarding potential impacts on business as a result of enforcement of the Executive Order are appropriate.
  • Modifying travel and meeting obligations.  Companies should consider modifying (or allowing for employee choice regarding) employee travel obligations, as appropriate to the company's business needs, to avoid potential difficulties with travel to and from the United States.  Likewise, if companies have board members or executives affected by the Executive Order, or business stakeholders who will not be able to enter the United States due to the Executive Order, consider whether meetings can be conducted remotely or outside the United States.  Companies involved in pending litigation that may require employee travel to the United States should consider seeking the advice of litigation counsel to determine what, if any, notice to the relevant court or parties may be advisable at this stage.
  • Reviewing non-discrimination policies.  Companies may wish to send reminders of applicable equal employment policies.  Many employers included such statements in communications regarding the original Order.  Companies may also wish to consider how their policies apply to employment and hiring decisions in light of travel restrictions.
This list addresses just some of the issues that companies will face in light of the Executive Order.  Gibson, Dunn & Crutcher's lawyers, including its employment, securities, administrative law, constitutional law, and sanctions teams, are available to assist clients with navigating these and other issues that arise with respect to enforcement of the March 6 Order.

IV.       Suspension of Expedited Processing for H-1B Visas

On March 3, U.S. Citizen and Immigration Services (USCIS) announced it will suspend "premium processing" of applications for H-1B visas.[8]  This change is effective April 3, 2017, the first date for filing FY18 applications.  The agency says that this is necessary to process back-logged petitions.  It also says that "expedited" processing is still available for applications meeting certain criteria, and subject to "the discretion of office leadership."  Applications that remain eligible for premium processing include those involving:  Severe financial loss to company or ​person​;​ Emergency situation;​ Humanitarian reasons;​ Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​ Department of Defense or ​national ​interest ​​situation; USCIS error; or​ compelling interest of USCIS.​[9]

*      *      *

Gibson Dunn will continue to monitor these rapidly developing issues closely.
   [1]   "Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States," Mar. 6, 2017, https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.    [2]   See, e.g., Letter from Attorney General and Sec'y of Homeland Security, Mar. 6, 2017, https://www.dhs.gov/sites/default/files/publications/17_0306_S1_DHS-DOJ-POTUS-letter.pdf    [3]   U.S. Dep't of Homeland Security, "Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States," Mar. 6, 2017, https://www.dhs.gov/news/2017/03/06/qa-protecting-nation-foreign-terrorist-entry-united-states.    [4]   U.S. Dep't of Homeland Security, "Fact Sheet: Protecting the Nation From Foreign Terrorist Entry To The United States," Mar. 6, 2017, https://www.dhs.gov/news/2017/03/06/fact-sheet-protecting-nation-foreign-terrorist-entry-united-states.    [5]   U.S. Dep't of State, "Executive Order on Visas," Mar. 6, 2017, https://travel.state.gov/content/travel/en/news/important-announcement.html.    [6]   http://cdn.ca9.uscourts.gov/datastore/general/2017/02/27/17-35105%20-%20Motion%20Denied.pdf; https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf.    [7]   http://www.politico.com/story/2017/03/trump-releases-new-travel-ban-executive-order-235720.    [8]   U.S. Citizenship and Immigration Services, "USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions," Mar. 3, 2017 https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions.    [9]   U.S. Citizenship and Immigration Services, "Expedite Criteria," https://www.uscis.gov/forms/expedite-criteria.
Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work or any of the following: Theodore J. Boutrous, Jr. - Los Angeles (+1 213-229-7000, tboutrous@gibsondunn.com) Rachel S. Brass - San Francisco (+1 415-393-8293, rbrass@gibsondunn.com) Anne M. Champion - New York (+1 212-351-5361, achampion@gibsondunn.com) Ethan Dettmer - San Francisco (+1 415-393-8292, edettmer@gibsondunn.com) Theane Evangelis - Los Angeles (+1 213-229-7726, tevangelis@gibsondunn.com) Kirsten Galler - Los Angeles (+1 213-229-7681, kgaller@gibsondunn.com) Ronald Kirk - Dallas (+1 214-698-3295, rkirk@gibsondunn.com) Joshua S. Lipshutz - Washington D.C. (+1 202-955-8217, jlipshutz@gibsondunn.com) Katie Marquart, Pro Bono Counsel & Director - New York (+1 212-351-5261, kmarquart@gibsondunn.com) Samuel A. Newman - Los Angeles (+1 213-229-7644, snewman@gibsondunn.com) Jason C. Schwartz - Washington D.C. (+1 202-955-8242, jschwartz@gibsondunn.com) Kahn A. Scolnick - Los Angeles (+1 213-229-7656, kscolnick@gibsondunn.com) © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.