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Regulatory Litigation Blog

Holland & Knight's Regulatory Litigation Blog addresses federal regulatory issues and cases brought by and against the federal government, including regulatory and statutory enforcement actions, challenging agency actions under the Administrative Procedure Act, and testing the constitutionality of legislative and regulatory schemes.

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Two of the pillars of modern administrative law are the doctrines of judicial deference to agency interpretations of laws and rules that the agencies administer. The doctrines take their names from the Supreme Court decisions that articulated them: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and Auer v. Robbins.
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January 14, 2019
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In drafting initial pleadings, some litigators assert every cause of action that could possibly fit the facts, so as to protect their clients from every angle. This approach requires extra care when one of the claims arises under the Uniform Trade Secrets Act (UTSA), which has been adopted in some form or another by virtually every U.S. state and territory. The reason? The UTSA's preemption provision—Section 7 of the Uniform Act—mandates that the trade secrets act "displaces" all other non-contractual civil remedies for trade secret misappropriation.
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January 11, 2019
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On Jan. 3, 2019, the Solicitor General filed a Brief for the United States as Amicus Curiae in response to an order issued Dec. 3, 2018 which "called for the views of the Solicitor General" (CVSG) in connection with two petitions for writ of certiorari pending before the Supreme Court of the United States (SCOTUS).
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January 9, 2019
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Partner Steven Gordon wrote an article for Law360 on the new asylum policy that the Trump Administration wants to pass which has been blocked by several immigrants' rights groups. The article details the proposed asylum policy and its appellate process which the U.S. Court of Appeal for the Ninth Circuit has concluded the new regulation conflicts with the asylum statute.
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January 8, 2019
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With the enactment of the Agriculture Improvement Act of 2018 (Farm Bill) on Dec. 20, 2018, hemp and cannabis derivatives with extremely low concentrations of Tetrahydrocannabinol (THC)—less than 0.3 percent on a dry weight basis—are no longer illegal substances under the Controlled Substances Act. While this means that these products can be legally produced and marketed in the United States, it does not mean that marijuana is legal or that the U.S. Food and Drug Administration (FDA) no longer has regulatory authority over hemp and other cannabis-derived products.
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January 4, 2019
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The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) on Dec. 11, 2018, issued a long-awaited proposed rule to define "Waters of the United States" (WOTUS) pursuant to the Clean Water Act (CWA).
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December 20, 2018
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The public's increasing reliance on anonymous product and company reviews posted online often gives rise to complaints by the subjects of those reviews, especially when the reviews are negative or critical, and threaten to adversely affect the subject's business. The U.S. District Court for the District of Massachusetts (Saylor, J.) recently addressed some of these issues in the course of granting a motion to dismiss in Craft Beer Stellar LLC v. Glassdoor, Inc., Case No. 18-cv-10510, 2018 U.S. Dist. LEXIS 178960 (D. Mass. Oct. 17, 2008), a case in which a California company, Glassdoor, Inc., tried to respond to complaints from a franchisor, Craft Beer Stellar LLC (Craft), about negative reviews of Craft's business, and its owner, posted on Glassdoor's website.
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December 5, 2018
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Allergy Associates of Hartford, P.C., entered into a Resolution Agreement and agreed to pay $125,000 to the U.S. Department of Health and Human Services, Office for Civil Rights (HHS) in order to settle certain Health Insurance Portability and Accountability (HIPAA) violations relating to the impermissible disclosure of a patient's protected health information.
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November 29, 2018
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Partner John Irving wrote an article for the PLI Current: The Journal of PLI Press on the United States v. Spatig case in which the U.S. Court of Appeals for the Ninth Circuit affirmed the defendant-appellant's conviction as the court held the Resource Conservation and Recovery Act's (RCRA) criminal provision as a "general intent" crime.
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Autumn 2018
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In a case of first impression, Judge Gregg Costa of the Fifth Circuit, affirming a lower court decision, held that a dismissal without prejudice of a Defend Trade Secrets Act (DTSA) case does not support a prevailing-party fee award. Dunster Live, LLC v. Lonestar Logos Management Company, (5th Cir.-- F.3d -- (2018)) 2018 WL 5916486.
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November 26, 2018
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On Nov. 20, 2018, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) seemingly ended the Veterans Contracting Group line of cases. As a refresher, in those cases, the contractor challenged the U.S. Small Business Administration (SBA)'s determination that it was an ineligible Service Disabled Veteran Owned Small Business (SDVOSB) and the U.S. Department of Veterans Affairs (VA)'s reciprocal removal from its SDVOSB database. The Federal Circuit dismissed the appeal as moot, noting that under the new SDVOSB regulations effective Oct. 1, 2018, the two sets of regulations are now uniform. While non-precedential in nature, the Federal Circuit's decision also raises questions of the consequential nature of the newly promulgated regulations for decisions currently pending before courts and administrative forums.


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November 21, 2018
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On Nov. 2, 2018, the Securities and Exchange Commission (SEC) released its fiscal year 2018 enforcement statistics. There was significant speculation about whether the recent downward trend in the number of enforcement actions filed and the amount of money secured by the SEC would continue, with some speculating that it would. Those predicting a continued reduction in SEC enforcement activity were wrong.
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November 9, 2018
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It's an old aphorism that "you can't fight City Hall." Now it's time to add a related aphorism: "you can't sue the government under the federal Defend Trade Secrets Act (DTSA) for disclosing your trade secrets" – at least so long as the disclosure is lawful under existing law apart from the DTSA.
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October 17, 2018
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In United States of Am. ex rel. Derrick v. Roche Diagnostics Corp., No. 1:14-cv-04601, 2018 WL 2735090 (N.D. Ill. June 7, 2018), the court denied motions to dismiss filed by Roche Diagnostics and Humana in a qui tam action brought by a former employee alleging that Roche and Humana engaged in a scheme that violated the Anti-Kickback Statute (AKS) and False Claims Act (FCA).
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October 1, 2018
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Partner Steven Gordon examined the decision to illustrate the impact that the remedy of injunctive relief has on judicial review of executive orders.
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September 26, 2018
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An investment advisor could not convince the D.C. Circuit that the recent Supreme Court decision in SEC v. Lucia meant an end to his legal troubles. Instead of setting aside an SEC administrative law judge (ALJ)’s multi-million dollar judgment against the investment advisor and his firm, the D.C. Circuit remanded the case back to the agency for a new hearing before a different ALJ.
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September 25, 2018
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Lawsuits over website accessibility for persons with visual and hearing impairments have become commonplace, and serial plaintiffs and their law firms have become accustomed to quick settlements following their claims that a retailer's website is inaccessible.
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Is a federal court determining foreign law required to treat as conclusive a submission from a foreign government interpreting its law? The U.S. Supreme Court confronted this question in a case involving price-fixing claims against Chinese sellers of vitamin C. In an opinion released yesterday, the Court determined that the views of the Chinese government that its laws compelled the Chinese conspirators to fix prices and output of Vitamin C are entitled to "respectful consideration" in U.S. courts, but not the "conclusive effect" provided by the Second Circuit. See Vitamin C Antitrust Litigation (Animal Science Products, et al. v. Hebei Welcome Pharmaceutical Co. Ltd. et al.), No. 16-1220, 585 U.S. __ (2018)).
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June 15, 2018
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A moratorium against the conversion or closure of gas stations in the District of Columbia has come under constitutional attack. The property owners have won the first round.
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Once the airplane leaves the gate, it's too late to try to get on board. And once the Federal Aviation Administration (FAA) issues a Record of Decision about new departure procedures, you have only a short time to petition for review.
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March 28, 2018
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