Latest News

FTC’s Action against “Repetitive” Filing of Citizen Petitions Reflects Expanding Pharma-Sector Enforcement Program

WLF Legal Pulse - Mon, 10/16/2017 - 9:35am
Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission By M. Sean Royall, a Partner with Gibson, Dunn & Crutcher LLP, with Richard H. Cunningham, Of Counsel in the firm’s Denver, CO office, and Andrew B. Blumberg, an Associate Attorney in the firm’s Dallas, TX office. On February 7th, 2017, the Federal Trade Commission (FTC) […]
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ICYMI: How Congress Can Help Your Favorite Local Restaurants

Education & the Workforce Committee - Wed, 10/11/2017 - 12:00am

How Congress can help your favorite local restaurants

By Chris Duggan

San Diego is transforming into more than America’s Finest City. It’s becoming a culinary hot spot. Previously known for its fish tacos and oceanside cuisine, creative chefs from across the United States and even Mexico are filling the city with everything from exotic flavors to good old American barbecue. Foodies from all over are packing into our local eateries to check out the hype.

Unfortunately for our booming food industry, a decision out of Washington, D.C., is threatening the livelihood of the country’s restaurant and hospitality industry. The National Labor Relations Board in 2015 redefined what it means to be a joint employer, or when two companies share supervision of an employee.

It’s no longer clear whether outsourcing the laundry makes a bed-and-breakfast owner liable for workplace safety at the neighboring dry cleaner or if contracting out some renovations puts an authentic Mexican restaurant owner on the hook for construction workers’ unpaid overtime.

The wide-ranging uncertainty that is infecting entrepreneurs could have widespread economic impact, too. Despite chefs and restaurant owners flocking to San Diego from all over, our fine city is experiencing a flat unemployment rate and a year-over-year decline in hiring.

How can that be so? No doubt, much can be attributed to an unstable employer environment.

Business owners are now using their limited resources to buy extra liability insurance and invest in legal counsel to protect the businesses they built. This is money that could be used to expand and hire more employees. The consequences of the joint employer ambiguities on the hospitality industry are a big deal in an area where nearly 35 million visitors spent $10.4 billion locally on tourism last year — supporting 184,000 leisure and hospitality jobs. To help invigorate economic momentum and job growth in San Diego, lawmakers must consider a fix to this standard.

Recently, there has been a welcome flurry of activity in our nation’s capital to try and provide restaurant owners and small businesses with some much-needed clarity. In fact, the Department of Labor moved in June to roll back the controversial decision with an executive order. Both developments prove that policymakers on both sides of the aisle hear the restaurant and small business community’s concerns. But in order to sustain a clear understanding that small business owners can rely upon, Congress must act.

Fortunately, there is already a piece of bipartisan legislation in Congress that would immediately fix this two-year old problem. The Save Local Business Act (House Resolution 3441) would return us to the common-sense definition where a business owner is accountable for his or her own employees, not those of other companies. Additionally, workers would be employed by the companies that hired them, not every other entity they consult for, contract with or provide services to.

Bringing back straightforward employer-employee relationships will make the workplace a less confusing place, where both sides can be confident in the lines of communication and responsibility. This will, in turn, have a positive impact on restaurateurs that are eager to return their focus to making great food.

H.R. 3441 is exactly what San Diego restaurants need. Hopefully, the California congressional delegation will sign onto this bill and continue leading the way for our bustling hospitality community. Our innovative chefs, restaurateurs and best-in-class workers who make this America’s Finest City are counting on it.

Duggan is the director of local government affairs of San Diego, Imperial, Riverside and San Bernadino counties for the California Restaurant Association.

To read the full editorial in the San Diego Union-Tribune, click here.

To learn more about the Save Local Business Act, visit edworkforce.house.gov/jointemployer.

SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit

WLF Legal Pulse - Tue, 10/10/2017 - 5:43pm
In an orders list issued today, the U.S Supreme Court invited the Solicitor General of the United States to file a brief expressing the federal government’s views on the petition for certiorari in Apple, Inc. v. Pepper. The case, in which Washington Legal Foundation filed an amicus brief supporting Apple’s request for review, involves a forty-year old […]
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WLF Webinar, October 11, 1:00 PM: Winning Personal Jurisdiction and Venue Battles

WLF Legal Pulse - Mon, 10/09/2017 - 9:00am
Personal Jurisdiction and Venue Disputes: Succeeding in a Changed Legal Environment Wednesday, October 11, 2017, 1:00-2:00 pm EST To view live on WLF’s Ustream channel, click here. Featuring: James M. Beck, Senior Life Sciences Policy Analyst, Reed Smith LLP, and founder, Drug & Medical Device Law blog Phil Goldberg, Partner, Shook, Hardy & Bacon L.L.P. […]
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Federal Preemption Ruling Flushes Another Eye-Drop Class Action

WLF Legal Pulse - Fri, 10/06/2017 - 2:49pm
Anyone who’s ever used eye drops has experienced solution overflow. You tilt your head back, pry your eye open, hold the dispenser close to your eyeball, and even though you squeeze very gently, some of the liquid flows onto your cheek. What is your logical next move? Is it to grab a tissue and dab […]
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ICYMI: Foxx, Roe Fiduciary Op-Ed

Education & the Workforce Committee - Thu, 10/05/2017 - 12:00am


Obama's fiduciary rule is already hurting small savers. Here's how to roll it back


By Chairwoman Virginia Foxx (R-NC) and Rep. Phil Roe (R-TN)

Saving for retirement is a difficult challenge for Americans across the country. By one estimate, there are nearly 40 million working families who haven't saved a dime for retirement. It's clear the last thing Washington should do is create new barriers to the financial security Americans need when they retire.

That's why it's so mind-boggling that the Obama administration put in place a so-called fiduciary rule that makes it harder for people to build a secure retirement.

We've always agreed that retirement advisers should act in good faith; we've been saying that from the start. But a rule requiring retirement advisers to serve their clients' best interests is completely pointless if it means many Americans won't have access to retirement advice at all.

For years, the House Committee on Education and the Workforce has led the fight against this fundamentally flawed rule. We weren't the only ones who raised concerns. In fact, nearly 100 House Democrats cautioned the Obama administration against finalizing a rule that would "have a disproportionate impact on lower- and middle-income communities."

Sadly, that's precisely what the previous administration settled on. And you don't have to just take our word for it. Even former President Barack Obama's own secretary of treasury, Jack Lew, recently acknowledged the rule will lead to harmful consequences, including "pricing smaller investors out of the financial advice market."

Indeed, according to the American Action Forum, the rule could increase costs on retirement savers by $46.6 billion. Those who can least afford it will be hit the hardest. Many working families will soon find they can no longer afford personal retirement advice, and small businesses will face new obstacles as they try to set up retirement plans for their employees.

We're seeing these predictions come to fruition. Several firms have already dropped the very types of services those with limited savings are more likely to rely on, and it's only a matter of time before things get worse.

A U.S. Chamber of Commerce report notes that 71 percent of advisors surveyed will stop providing advice to some of their clients with small account balances. Perhaps most concerning, the report found that up to 7 million retirement savers may lose access to retirement advice altogether.

For these very reasons, we wish the rule had been scrapped altogether. But from Secretary of Labor Alexander Acosta's perspective, his hands were tied. That makes it even more compelling to develop a legislative solution.

To his credit, the secretary also noted that "America was founded on the belief that people should be trusted to govern themselves … Voters elect their representatives to Washington." We agree. As the People's representatives, we have a duty to fix the fiduciary mess.

Our committee recently advanced the Affordable Retirement Advice for Savers Act, which will repeal the fiduciary rule and preserve access to affordable retirement advice. It also amends federal law to require retirement advisers to act in the best interests of their clients. Legislation — not 1,000 pages of red tape — is the right way to address an issue with such a widespread impact.

This legislation proves we can hold financial advisers accountable without causing millions of Americans to lose access to affordable retirement advice. It's our hope that members of both parties will do the right thing by joining together and sending H.R. 2823 to President Trump's desk. The American people are depending on us to do just that.


Rep. Virginia Foxx, R-N.C.
(@virginiafoxx), is chairwoman of the House Committee on Education and the Workforce. Rep. Phil Roe, R-Tenn. (@DrPhilRoe), a member of that same committee, also chairs the House Committee on Veterans Affairs.

To read the full op-ed in the Washington Examiner, click here.


Treasury Announces that it will Withdraw the Estate Valuation Proposed Regulations

Office of Advocacy - Wed, 10/04/2017 - 3:43pm

On October, 4, 2017, the Department of Treasury announced recommended actions to withdraw, partially revoke, or revise eight regulations identified by Treasury for review under Executive Order 13789, which called for the identification of tax regulations that impose an undue burden on taxpayers. 

Categories: Latest News, SBA Advocate

Advocacy Report Shows Rural Entrepreneurship Has Been Declining

Office of Advocacy - Wed, 10/04/2017 - 12:34pm

 

Advocacy Report Shows Rural Entrepreneurship Has Been Declining

 

Categories: Latest News, SBA Advocate

Opening Statement by Rep. Bradley Byrne (R-AL): Markup of H.R. 3441, the Save Local Business Act

Education & the Workforce Committee - Wed, 10/04/2017 - 12:00am

I was proud to introduce the Save Local Business Act because it’s good for workers and it’s good for job creators. I appreciate the opportunity to speak in support of this commonsense proposal today.

As a former labor attorney, I can tell you it used to be pretty clear who an employer was. But now, two completely separate employers can be considered joint employers if they make a business agreement that “indirectly” or even “potentially” impacts their employees.

Those are certainly vague terms. So vague that many lawyers may not even agree on what exactly they mean. But we know the real-world impact has been confusion, uncertainty, and growing legal jeopardy.

Here’s what those terms mean to the owner of Wintzell’s Oyster House in my district in Mobile, Alabama. The owner, Bob Omainsky, wrote recently in Alabama Today:

“If we hire an outside landscaping company to keep our lawns lush, I could be considered a joint employer if I show the landscapers where to mow. Or, if I contract a food supplier for certain ingredients, I could become part of a lawsuit if one of their workers complains about overtime pay. The uncertainty is nothing more than governmental overreach that is crippling eateries like Wintzell’s and discouraging growth throughout the restaurant industry.”

There are small business owners in all of our districts who are working hard each and every day to create jobs and contribute to our local economies, and they deserve better than this. They deserve clarity.

Workers deserve better, too. They deserve better than an extreme and unworkable rule that threatens 1.7 million jobs. And they deserve better than unelected bureaucrats interfering with their relationship with their employer for the sole purpose of empowering union and trial lawyer interests.

That’s right. This joint employer scheme was really intended to make it easier for Big Labor to organize small businesses. It’s no surprise that some of the nation’s largest labor unions have been peddling scare tactics and spreading false information about H.R. 3441.

So let me be clear on what this bill does. H.R. 3441 maintains existing worker protections under the National Labor Relations Act and the Fair Labor Standards Act.

We are amending the NLRA to roll back the Browning-Ferris decision and prevent future NLRB overreach. And we are amending the FLSA because aggressive trial lawyers and activist judges have made matters even worse by creating a confusing patchwork of joint employer standards across the country.

Again, this bill does not take away a single protection from a single worker. Instead, it ensures the actual employer is legally responsible for providing those protections. If everyone is responsible, no one is.

Some have wrongly claimed that the joint employer standard reflected in H.R. 3441 is somehow a dramatic departure from long-standing policy prior to the NLRB’s 2015 ruling. That claim is quite frankly absurd.

I’d like to remind the members of this committee that it was the Browning-Ferris decision, and actions by Obama-era bureaucrats, that completely disrupted what was once a stable legal environment and threatened countless local businesses as a result.

H.R. 3441 simply restores the commonsense joint employer standard that workers and employers relied on for decades. It clarifies that two or more employers must have “actual, direct, and immediate” control over essential terms and conditions of employment to be considered joint employers.

The bill as introduced is consistent with case law prior to BFI, and today’s markup presents an opportunity to make the bill even clearer.

That’s why the substitute amendment I am offering makes clarifying and technical changes to the underlying bill. I urge all members to support the substitute, as well as H.R. 3441.

To read PDF version, click here.

Opening Statement by Chairwoman Virginia Foxx (R-AL): Markup of H.R. 3441, the Save Local Business Act

Education & the Workforce Committee - Wed, 10/04/2017 - 12:00am

Today, the committee will consider H.R. 3441, the Save Local Business Act. Since the National Labor Relations Board unilaterally redefined what it means to be an employer in 2015, more than two dozen witnesses have come before this committee and others in Congress to tell us, in practical terms, what the decision means for the future of American jobs.

We’ve heard firsthand how the board’s decision, and the actions of regulators and activist judges that followed, have disrupted the daily operations of business owners across the country.

The consequences have been far-reaching. Basic, business-to-business relationships that have long been a part of the American way of life and a critical component to the success of our economy have been called into question.

The lines of responsibility for important worker protections are now blurry. Small business owners fear they will lose the independence they worked so hard to achieve. Others who rely on contracting opportunities fear their options for growth, along with their limited stream of revenue, will suddenly diminish.

Meanwhile, many hardworking men and women are left wondering why the relationship they have with their employer is changing, or if unelected bureaucrats or activist judges will dictate that they have a new boss at some distant company.

And that’s not all. While we’ve all been working together here in Congress to support workforce development reforms, we’ve simultaneously heard how the joint employer scheme makes it harder for employers effectively to do their part in addressing our nation’s skills gap.

All of this damage began with one extreme and obstructive ruling. We wouldn’t be here today if the overwhelming consensus wasn’t that the NLRB and Obama-era bureaucrats made serious mistakes.

We’re here today to complete one of the most important steps in correcting those mistakes. Mr. Byrne has introduced the Save Local Business Act with the support of most of the members of this committee.

The bill directly addresses the mistakes the NLRB made when it redefined the concept of joint employment and put so many jobs and livelihoods at risk. And it addresses the mistakes the Obama administration made when it spread the board’s flawed policy to other areas of federal labor law.

Both of our workforce subcommittee chairmen, Mr. Byrne and Mr. Walberg, have carefully examined the statutes under their respective jurisdictions. They worked together to ensure that the scope of the bill under consideration today appropriately clears up the existing confusion and restores the commonsense concept of joint employer for businesses of every size.

American workers deserve to know who they’re dealing with in their workplaces. They should have the power to speak for themselves on matters of pay, schedules, professional development — anything that helps them have the successful life they want for themselves.

In order to do that, they need to know with certainty who their employer is. But both employers and employees have made clear to this committee that the current joint employer standard is confusing at best, devastating at worst, and simply not sustainable.

We have heard them, and that’s what leads us to where we are today. I thank Mr. Byrne for his hard work bringing the Save Local Business Act this far, and I thank all of our members for being here and for ensuring the joint employer problem and this solution get the thorough attention they deserve.

To read PDF version, click here.

Advocacy to Host Regulatory Roundtable in Glen Allen, Virginia

Office of Advocacy - Tue, 10/03/2017 - 11:57am

 

Advocacy to Host Regulatory Roundtable in Glen Allen, Virginia  

 

Categories: Latest News, SBA Advocate

Mitch Tyner Appointed Senior Advisor/Director of Regional Affairs

Office of Advocacy - Tue, 10/03/2017 - 11:53am

Mitch Tyner Appointed Senior Advisor/Director of Regional Affairs

 

Categories: Latest News, SBA Advocate

The Latest on ALI’s Liability Insurance Restatement: Same as it Ever Was

WLF Legal Pulse - Thu, 09/28/2017 - 3:21pm
When last we addressed the American Law Institute’s (ALI) proposed Restatement, Law of Liability Insurance, we reported that the organization decided at its May annual meeting to table final consideration of the document until 2018. One of the proposal’s chief Reporters, Professor Tom Baker, indicated that he and co-Reporter Kyle Logue would embark on a […]
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D.C. Circuit Once Again Reminds EPA Which Governmental Branch Enacts Laws

WLF Legal Pulse - Tue, 09/26/2017 - 10:13am
Featured Expert Column – Environmental Law and Policy By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP In recent years, either when Congress has chosen not to act on certain matters—or arguably does so without sufficient clarity—the Executive Branch has asserted the power to address issues through regulation. These agency […]
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Drunk Suing, Another Round: Court Allows False-Labeling Claim on “Hawaiian Beer” to Proceed

WLF Legal Pulse - Mon, 09/25/2017 - 9:05am
We have been covering a legal action against Kona Brewing Company (now renamed Broomfield v. Craft Brew Alliance), which is one suit in the larger trend of class actions against breweries alleging misleading or false labeling and advertising.  In that suit, Judge Beth Labson Freeman, who sits on the U.S. District Court for the Northern […]
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Pending High Court Case Tests Congress’s Authority to Detain and Deport Criminal Aliens

WLF Legal Pulse - Thu, 09/21/2017 - 1:07pm
The US Supreme Court on October 3, 2017 will hear oral arguments for the second time in an important immigration case, Jennings v. Rodriguez.  The Court was unable to reach a decision the first time around, apparently because it divided 4-4 on how to resolve the case.  A key issue in the case is which […]
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U.S. Department of Energy Seeks Comments on its Notice of Proposed Rulemaking on Small-Scale Natural Gas Export

Office of Advocacy - Wed, 09/20/2017 - 1:18pm

On September 1, 2017, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking to revise regulations on export authorizations for natural gas. The proposed rule would allow DOE to issue an export authorization upon receipt of any complete application seeking to export natural gas, including liquefied natural gas, to countries with which the U.S.

Categories: Latest News, SBA Advocate

No “Daubert”-Style Gatekeeping in Alabama for Expert Testimony Based on Technical or Specialized Knowledge

WLF Legal Pulse - Mon, 09/18/2017 - 9:00am
Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence By Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP. In federal courts, Daubert v. Merrell Dow Pharmaceuticals, Inc. applies not only to scientific testimony but also to technical and other specialized knowledge. […]
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