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Video of WLF’s 30th Annual Preview Briefing of US Supreme Court Term Now Available

WLF Legal Pulse - Thu, 09/29/2016 - 11:09am
Our annual briefing was moderated by WLF Legal Policy Advisory Board Chairman Jay Stephens and featured commentary on free-enterprise-oriented cases the Court will hear this Term by Neal Katyal of Hogan Lovells and Daryl Joseffer of King & Spalding LLP. The following materials were provided to attendees: The Supreme Court’s NOT Top 10: October Term […]
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GSA Launches Data Federation as Part of Open Government Efforts

GSA news releases - Thu, 09/29/2016 - 12:00am
Launch to include pilot program to develop data federation strategy

Kline Statement: Debate on H.R. 6094, the Regulatory Relief for Small Businesses, Schools, and Nonprofits Act

Education & the Workforce Committee - Wed, 09/28/2016 - 6:35pm
In 2014, the Department of Labor began an effort to update federal overtime rules. There would have been strong bipartisan support for that effort if the department had pursued a responsible approach. In fact, we have spent years engaging in this issue because we believe federal overtime rules need to be modernized—both to strengthen protections for workers and to provide more clarity and certainty for employers.

Unfortunately, the department took a different approach and finalized an extreme rule that will hurt those it’s supposed to help. As we have heard from witnesses at hearings and constituents back home, the rule will leave individuals with less flexibility at work and fewer opportunities to further their careers or pursue jobs they want or truly need. We have also learned that the rule will make college less affordable and make it more difficult for charitable organizations to serve people in need.

The purpose of the legislation we are considering today is to provide some relief—even if temporary—to those who will be harmed the most: men and women working hard to grow their own businesses and employees trying to provide a better life for their families; students pursuing the dream of a higher education; and countless Americans relying on nonprofits for help and support.

It took the Obama administration more than two years—or 27 months—to complete this rule, but they’ve given the American people just six months to make the difficult choices necessary to implement it. According to one report, 49 percent of small businesses aren’t even aware the new rule exists. Imagine how many schools and nonprofits are in the same position.

This legislation will give these men and women more time to implement the rule and help mitigate its impact on students, workers, and vulnerable individuals. But the clock is ticking. Important decisions about payroll and staffing have to be made and quickly. If we fail to act now, it may be too late.

I want to thank Representative Walberg for introducing this important legislation and for his continued leadership in championing efforts to responsibly update federal overtime rules.


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Walberg Statement: Debate on H.R. 6094, the Regulatory Relief for Small Businesses, Schools, and Nonprofits Act

Education & the Workforce Committee - Wed, 09/28/2016 - 6:30pm
I was proud to introduce this legislation to provide small businesses, colleges and universities, and nonprofit organizations much-needed relief from a fundamentally flawed rule that will do more harm than good.

It’s unfortunate this legislation is necessary in the first place. For over two years, Republicans have urged the department to update our nation’s overtime rules responsibly. These rules serve as important protections for America’s workers, but the existing regulatory structure is extremely outdated and complex.

The department should have used this opportunity to modernize overtime rules for the 21st century workforce. They should have listened to the countless small businesses owners, heads of nonprofit organizations, state and local leaders, and college and university administrators who warned that an extreme and partisan rule would lead to harmful consequences.

But the department failed to take a balanced approach, and refused to listen. Instead, they stuck by a Washington-knows-best mentality and finalized a rule that was exactly what so many hardworking men and women had feared. The rule doubles the salary threshold for overtime eligibility and requires further automatic increases every three years. And then to make matters worse, the department even kept in place the same-old regulatory maze that has existed for decades.

As the administration pats itself on the back and rushes to implement a rule in just a few short months, those who will face the real-world consequences are scrambling to meet the unrealistic December 1st deadline.

Ernie MacEwen, a South Rockwood small business owner in my district, said he already opted to hire one less employee this year in anticipation of the rule. He said he has heard from other small business owners who don’t even know the rule exists. Karen Richard, who owns Culver’s Restaurants in Ann Arbor and Jackson, is worried the rule will limit opportunities for the young people she employs.

Adrian College is trying to make tough decisions that could impact tuition and services for students, and the time crunch is making the process even more challenging. Bethany Christian Services in Grand Rapids is concerned the rule will undermine support for children in need.

These stories aren’t unique to Michigan. These are the types of stories that are unfolding across the country. And yet, the administration continues to quickly move toward the December 1st implementation date in total disregard for the challenges facing the small businesses, schools, and nonprofit organizations serving our communities.

The administration should abandon this rule before it limits opportunities for workers; hurts young people striving for an affordable education; burdens hardworking small business owners; and jeopardizes vital services for vulnerable Americans. It’s time to go back to the drawing board and work toward the balanced, responsible approach we’ve been fighting for from the start.

Time is running out. The administration and Members of Congress should do the right thing and provide more time to those struggling to implement this rule before an arbitrary and unrealistic deadline. I urge my colleagues to support this commonsense legislation, and to help deliver the relief small businesses, schools, and nonprofits in each and every one of our districts so desperately need.


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Using “Daubert” to Exclude Plaintiffs’ Use of Flawed Surveys in Civil Litigation

WLF Legal Pulse - Wed, 09/28/2016 - 2:50pm
Featured Expert Column: Judicial Gatekeeping of Expert Evidence By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP Expert testimony is typically thought of as providing an insight into the evidence in the case, or drawing a conclusion from the evidence, that requires knowledge beyond the ken of a typical judge or juror.  […]
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Divergent Philosophies on Merger Enforcement Emerge from Senior DOJ, FTC Antitrust Officials’ Speeches

WLF Legal Pulse - Wed, 09/28/2016 - 9:00am
Antitrust & Competition — U.S. Department of Justice Anthony W. Swisher, a Partner in the Washington, DC office of Squire Patton Boggs (US) LLP. *Ed. Note: With this post, Mr. Swisher is assuming the role of Featured Expert Contributor on Antitrust & Competition—DOJ.  The WLF Legal Pulse welcomes him on board, and we thank his […]
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House Votes to Delay Obama Administration’s Overtime Rule

House Small Business Committee News - Wed, 09/28/2016 - 12:00am

Bipartisan Measure Gives Small Businesses Six Months to Plan, Fight

Click Image to Watch Chairman Chabot Speak on the House Floor

WASHINGTON - House Small Business Committee Chairman Steve Chabot (R-OH) hailed House passage of a bipartisan measure to delay the Obama administration’s new overtime rule for six months. This additional time will enable small businesses and other small employers to plan for and fight back against these costly, burdensome new rules. H.R. 6094, the Regulatory Relief for Small Businesses, Schools, and Nonprofits Act, passed the House by a vote of 246 to 177 and now moves to the U.S. Senate for consideration.

“Over the past year, the Committee on Small Business has heard from countless small businesses that shared their concerns about the overtime rule,” said Chairman Chabot (R-OH). “Small businesses give their employees flexible schedules, pay increases when they can afford it, and career advancement opportunities because employees are key to their success.  This rule will limit the ability of small businesses to provide these benefits, which will have a devastating impact on employee morale.  Our Committee Members, and other officials including the Chief Counsel for Advocacy at the Small Business Administration, joined small businesses in urging the Department of Labor to change course.”


  • Chairman Chabot discussed the damage that will be done to America’s 28 million small businesses and efforts to delay the overtime rule on MSNBC this weekend on “Your Business.”
  • Chabot and Committee Republicans have vigorously opposed the DOL overtime rule throughout the 114th Congress.
  • The Committee has held numerous hearings and roundtables and sent multiple letters explaining to the administration the damage that will be done to small businesses and other small employers as a result of the rule.
  • Today’s legislation passed as House Republicans are offering a policy agenda to reduce the regulatory burden on small businesses as part of A Better Way to Grow our Economy.

Daines, Nelson: Hotel Patrons Should Be Protected from Online Booking Scams

WASHINGTON, D.C. —U.S. Sens. Steve Daines (R-MT) and Bill Nelson (D-FL) today introduced legislation to protect consumers from online booking scams.  

Daines and Nelson introduced The Stop Online Booking Scams Act that protects consumers from illegitimate third party websites that trick consumers into thinking they are making reservations directly with hotels.

Online booking sites have created a marketplace where consumers can shop for hotels across thousands of brands on a single platform. With the rise of online booking (480 bookings per minute) has come an increase in online booking scams. Fraudulent websites give the appearance of being connected to a hotel, but actually have no relationship with them. Transactions on these sites can result in additional hidden fees, loss of expected loyalty points, or even confirmation of reservations that were never made. The Stop Online Booking Scams Act addresses this problem.

“Tourism is an important part of Montana’s economy and we need to make sure that folks are getting what was promised to them,” Daines stated. “Legitimate online booking sites provide consumers with a valuable tool for comparison shopping, but deceptive websites trick consumers and scam them into paying for reservations that don’t exist.”

“This bill intends to crackdown on crooks and fraudsters who trick consumers into booking hotel rooms that don’t exist,” said Nelson, the ranking Democrat on the Senate Commerce Committee.  “Millions of consumers use the Internet to easily compare prices and find great deals on hotel rooms.  We can’t have a few bad actors ruin this for everyone else.”

Similar legislation was introduced in the U.S. House of Representatives earlier this year by Rep. Lois Frankel (D-Fla.).

The Stop Online Booking Scams Act:

Recognizes the Consumer Benefits of Legitimate Booking Sites:

  • Includes a sense of Congress that recognizes the robust online marketplace that allows consumers to easily compare brands and make reservations
  • Notes that actions by third party sellers that misappropriate brand identity or use deceptive sales tactics are harmful to consumers

Narrowly Targets Illegitimate Third Party Reservation Sellers:

  • Makes it unlawful for a third party online hotel reservation seller who is not affiliated with the hotel to accept payment for a reservation unless the seller discloses that they are not affiliated with the hotel
  • A third party seller may achieve this by:
    1. Including conspicuous language throughout the transaction
    2. Including prominent display of the seller’s brand identity

Gives Enforcement Authority to the Federal Trade Commission and State Attorney Generals:

  • Makes a failure to comply with the third party disclosure requirements an unfair or deceptive act under the Federal Trade Commission Act
  • Gives state AGs the authority to bring a civil action against companies who violate this provision



WLF’s 26th Annual Supreme Court Preview Media Briefing

WLF Legal Pulse - Tue, 09/27/2016 - 11:00am
2:00-3:00 p.m., September 27th, 2016 Attend in person at 2009 Massachusetts Avenue, NW (Dupont Circle North Metro Exit) or online at www.wlf.org A live-stream is also available here.   Our Panel of Experts: The Hon. Jay B. Stephens, Kirkland & Ellis LLP (Moderator) Neal Katyal, Hogan Lovells Daryl L. Joseffer, King & Spalding High Court Cases to Be Addressed: […]
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<p>"Good morning, and welcome to

"Good morning, and welcome to today’s hearing on oversight of the Federal Trade Commission.

"This morning, we will hear directly from the FTC’s three sitting commissioners: Chairman Ramirez, Commissioner Ohlhausen, and Commissioner McSweeny. Let me take this opportunity to welcome you to the Committee and thank you for your service.

"I first want to note that Chairman Moran was scheduled to convene a Subcommittee hearing this afternoon. That hearing was to include a panel of thought leaders who would offer their own perspectives from outside the Commission. Due to scheduling conflicts that have arisen, we will unfortunately have to reschedule that hearing until a later date. We appreciate the willingness of those witnesses to testify and thank them for their understanding.

"The FTC was founded in 1914 by Congress – specifically by this Committee. In fact, the FTC is the oldest independent federal agency under the jurisdiction of this Committee. At the beginning of this Congress, the agency celebrated its 100th anniversary, an event that prompted retrospection both from the Commission and its observers.

"As many in the room know, the agency was born of the concern that more needed to be done to ensure competitive markets in the United States and to “bust the trusts” that threatened that competition. The Commission’s focus soon expanded to include an enforcement mandate against unfair and deceptive acts and practices that threatened consumer welfare.

"A common theme uniting the Commission’s dual focus on competition and consumer protection is ensuring freedom in the marketplace. Throughout the decades, and on the balance, the FTC has been a strong cop on the beat, ensuring that Americans reap the benefits of a functioning economy free from domination by firms with unfairly concentrated market power. It has also made it possible for Americans to be confident in their commercial transactions and grow the economy with the knowledge that they are protected from fraudsters and cheats seeking to do them harm.

"Among its many programs, the FTC administers the national Do-Not-Call program, which was created in 2003 and was once rated as the second-most popular federal initiative in American history, second only to the Elvis stamp. By 2010, the registry had topped 200 million numbers.

"But the agency has not been without controversy. In the late 1970s, for example, the agency drew criticism from none other than the Washington Post editorial board for its consideration of a regulation that would impose major restrictions on television advertisements aimed at young children in order to reduce the amount of sugar children eat. This regulatory overreach led the Post to criticize the Commission as the “great national nanny” and led Congress to adopt heightened procedural safeguards on the Commission’s authority to promulgate rulemakings. It was a recognition that the proper role of government must be limited.

"Despite these measures, the Commission has at times asserted itself in ways that continue to raise concerns about overreach. This Committee has pressed the Commission, for instance, on the scope of its Section 5 authority, which prohibits unfair and deceptive acts in commerce.

"When Congress drafted the FTC Act, we took care to ensure the prohibitions of Section 5 would be evergreen. And this flexibility is one of the statute’s key features. For example, in the 1930s, in one of its first cases to use this “unfair and deceptive” language, the Commission brought a paint misbranding case against a manufacturer who allegedly sold a product branded as high-quality white lead paint when the paint, in fact, contained no white lead.

"While not the case today, at the time this occurred, lead in paint was a desirable characteristic. I raise this example to illustrate that, as market preferences and technologies evolve, Section 5 adapts. The Commission is equally comfortable using the same language in recent years to bring cases against app developers who deviate from their stated privacy policy, or against mobile phone carriers who cram third-party charges onto customers’ bills.

"But Section 5’s flexibility does not mean it is open-ended. To best serve customers, the business community needs certainty, guidance, and predictability in order to comply with the law. American merchants are also entitled to fairness and due process when it comes to enforcement. When the FTC deviates from longstanding practice, it creates uncertainty about what the Commission’s interpretation of the law may be, who is liable, and the extent of that liability.

"We have heard concerns, for instance, about the Commission’s application of its unfairness authority to bring cases against private companies for lax data security practices. We all agree that consumers should be protected against unreasonable data security practices that put them at risk of identity theft and financial harm. But for some time now, a key element in any unfairness case has been whether or not a practice causes substantial – that is, monetary but not subjective – injury to consumers. In one recent high-profile case, the FTC sought to enforce against a small business on grounds that it failed to implement reasonable security measures to protect the sensitive consumer information on its computer network. The FTC took the extraordinary step of overturning the decision of its own administrative law judge, who found, on the basis of the evidence in the case, no monetary harm to the affected consumers. We will continue to monitor developments in that case.

"Another area of focus for this Committee has been regulations impacting technology innovation. One of the first hearings we held this Congress was on the Internet of Things. In that hearing, we examined the significant economic and societal impact the connected world might bring. At the time, I expressed my hope that we, the government, would have the humility to recognize that the best solutions are often not government solutions, and that we not stifle the Internet of Things before we, and consumers, have had a chance to gain an understanding of its real promise and implications.

"The Commission has also focused on the Internet of things, both with enforcement activity and guidance to industry. The Commission issued its Internet of Things report last year, which summarized a workshop the FTC held on the topic. The report provided policy recommendations that some, including Commissioner Ohlhausen, have criticized for its “government-knows-best” approach that could inhibit innovation and growth. While I appreciate the Commission’s willingness to explore new topics, I would caution the Commission to exercise regulatory humility, preserve “permission-less innovation,” and continue to address actual consumer harms as they arise.

"With that, I will close by thanking the Commissioners for being here today, and turn to Senator Blumenthal for any opening remarks he might have."

Opportunity Rising: the FAA’s New Regulatory Framework for Commercial Drone Operations

House Small Business Committee News - Tue, 09/27/2016 - 11:00am
Chairman Cresent Hardy has scheduled a hearing of the Committee on Small Business Subcommittee on Investigations, Oversight and Regulations titled, Opportunity Rising: the FAA’s New Regulatory Framework for Commercial Drone Operations. The hearing is scheduled to begin at 11:00 A.M. on Tuesday, September 27, 2016 in Room 2360 of the Rayburn House Office Building.

1. Hearing Notice
2. Witness List

Witness List

Mr. Gabriel Dobbs
Vice President, Business Development and Policy
Kespry Inc.
Menlo Park, CA
*Testifying on behalf of the Small UAV Coalition

Mr. Brian Wynne
President & CEO
Association for Unmanned Vehicle Systems International
Arlington, VA

Mr. Jonathan H. Daniels
Praxis Aerospace Concepts International, Inc
Henderson, NV

GSA’s Human Capital and Training Solutions (HCaTS) Unrestricted Contract is Ready for Business

GSA news releases - Tue, 09/27/2016 - 12:00am
GSA’s Human Capital and Training Solutions (HCaTS) Unrestricted Contract is Ready for Business

Opportunity Rising: Effects of New Regulations on the Commercial Drone Industry

House Small Business Committee News - Tue, 09/27/2016 - 12:00am

FAA: 90 percent of drone owners will be small businesses

– Small business owners told a key Congressional subcommittee today that new federal regulation that allows commercial use of small unmanned aircraft systems, otherwise known as drones or UAS, are opening up the skies and opportunities for new jobs and economic growth.  However, effective and efficient implementation of the rule and the Federal Aviation Administration’s (FAA) next steps to fully and safely integrate UAS into the national airspace system are critical to the industry’s success.  The FAA projects that 90 percent of drone owners will be small businesses making clear and sensible regulation essential as these entrepreneurs try to get startups off the ground and improve existing small businesses day-to-day operations through the use of this technology.

“We are bearing witness to the next great aviation renaissance,” said Rep. Cresent Hardy, R-NV, Chairman of the House Small Business Committee’s Subcommittee on Investigations, Oversight and Regulations. “Advances in technology have cleared the way for a reality that, only a short time ago, was merely a dream.” 

“From the delivery of goods to the surveying of land, unmanned aircraft systems, otherwise known as UAS or drones, are poised to change how we do business.  And with an initial report indicating that an overwhelming majority of companies operating UAS for commercial purposes have 10 employees or less, this industry will truly be a small business industry,” Subcommittee Chairman Hardy added.

Commercial Drones Save Time, Money and Lives

“Unmanned aircraft systems, or UAS, increase human potential, allowing us to execute dangerous or difficult tasks safely and efficiently,” testified Brian Wynne on behalf of the Association for Unmanned Vehicle Systems International (AUVSI). “From inspecting pipelines to surveying bridges to filming movies, UAS help save time, save money and, most importantly, save lives. It is no wonder why thousands of businesses—small and large—have already embraced this technology, and many more are considering integrating it into their future operations.”

What it Means for Nevada Ranchers, North Carolina Farmers and other Small Businesses

“While we appreciate that Part 107 allows for waivers to operate beyond the visual line of sight (BVLOS) and over people, the FAA’s next phase of regulations must provide for even more efficient approval of these types of operations or the United States will fail to develop the robust commercial drone industry that other countries are actively pursuing,” added Gabriel Dobbs, the Vice President of Business Development and Policy at Kespry Inc., who testified on behalf of the Small UAV Coalition. A rancher in Nevada or a farmer in North Carolina cannot fully benefit from drone technology if he must follow his drone in his truck to maintain the visual line of sight while inspecting his property.”

Need for Regulatory Improvement

“PACI has been involved in the development of the Eldorado Droneport in Boulder City, Nevada since the summer of 2015. I want to state that we are thankful for the positive support and assistance we are getting from UAS Office and Airports Division. However, during this process, we have encountered some issues as the regulatory structure does not address UAS activity on airports.  There is a need for additional regulatory improvements,” observed Jonathan H. Daniels of Praxis Aerospace Concepts International, Inc.  “Airports are categorized by the number of passenger boardings or by tonnage of cargo- this metric does not work with the current limitations of UAS operation. UAS do not count towards the number of based aircraft, and there are no acceptable standards for traffic patterns for any size UAS.”


  • The FAA Modernization and Reform Act of 2012 (2012 Act) provided the FAA with new authority and new mandates to accelerate the safe integration of UAS into the national airspace system.
  • Section 333 of the 2012 Act authorized certain commercial drone operations on a case-by-case-basis. From September 2014-August 2016, FAA granted 5,552 exemptions, indicating a tremendous amount of early adoption.
  • The final rule that allows civil operations of small UAS was issued on June 28, 2016 and went into effect on August 29, 2016.  Small UAS are those that weigh 55 pounds or less.  The rule establishes Part 107, the new regulatory framework for small UAS operations which includes pilot requirements, operational restrictions, and aircraft requirements for commercial purposes.
  • As of September 20, 2016, the FAA reported that: 6,768 people have taken the test to become a “remote pilot in command” and the test’s passage rate is 88 percent; 14,909 remote pilot certificate applications have been submitted through the FAA’s website and 10,966 of those certificates have been processed; 552 waiver requests from Part 107 operational requirements have been submitted and 79 approved (those approved since the new rule went into effect were submitted under the old case-by-case process), and zero airspace authorizations have been approved.

You can read full testimony from today’s hearing here and view full video here.

GSA and DOE Call for Innovative Technologies to Improve Federal and Commercial Buildings

GSA news releases - Mon, 09/26/2016 - 12:00am
GSA, DOE Call for Innovative Technologies to Improve Federal and Commercial Buildings

The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted

WLF Legal Pulse - Fri, 09/23/2016 - 11:51am
This Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there.  With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the […]
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The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Not Have Denied

WLF Legal Pulse - Fri, 09/23/2016 - 9:57am
This Monday the US Supreme Court will conduct its so-called Long Conference, named for the fact that the large number of certiorari petitions it considers there cause it to last much longer than the other conferences the justices conduct throughout the year.  With the fate of so many cert petitions hanging in the balance—and the […]
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Surface Transportation and Maritime Security Act Addresses TSA Vulnerabilities

S. 3379, the Surface Transportation and Maritime Security Act, addresses deficiencies in the Transportation Security Administration’s (TSA) efforts to protect rail, transit, highway, and maritime passenger and freight transportation identified through congressional oversight and a recent report by the Department of Homeland Security inspector general.

Federal Court in NY Cites Obstacle Preemption in Dismissing State-Law Fraud Suit Against Organic Producer

WLF Legal Pulse - Thu, 09/22/2016 - 12:50pm
Featured Expert Contributor — Civil Justice/Class Actions Frank Cruz-Alvarez, a Partner in the Miami, FL office of  Shook, Hardy & Bacon L.L.P. with Ravika Rameshwar, an Associate with the firm. On August 23. 2016, the US District Court for the Eastern District of New York dismissed a class-action suit that alleged the makers of Similac® […]
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