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Today on the WLF Legal Pulse blog

CFPB Proposal Unconstitutionally Imposes Prior Restraint on Regulated Entities’ Speech

By Burt M. Rublin, Partner, and Daniel L. Delnero, Associate, Ballard Spahr LLP

Prior restraints on speech are highly disfavored and presumptively unconstitutional. See Tory v. Cochran, 544 U.S. 734, 738 (2005) (“Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”). Yet the Consumer Financial Protection Bureau (CFPB) proposed exactly that in its Proposed Rule Relating to Disclosure of Records and Information (Proposed Rule), CFPB-2016-0039, 81 Fed. Reg. 58310 (Aug. 24, 2016). CFPB seeks to prohibit the recipient of a civil investigative demand (CID) or letter from the agency providing notice and opportunity to respond and advise (NORA letters) from disclosing the CID or NORA letter to third parties without prior written consent of a high-ranking CFPB official.  In effect, this would constitute a “gag” rule that would stifle constitutionally protected speech.

The proposed gag rule is not only ill-advised as a matter of public policy, it is also unconstitutional both as a prior restraint on speech and a content-based restriction.  It would be subject to strict scrutiny, and the CFPB would have to show a compelling government interest to justify it, which it could not.  Indeed, CFPB has not claimed, nor could it claim, that the absence of a similar gag rule since the creation of CFPB has hindered or impaired its effectiveness.  Continue reading

Jibe Audio, LLC v. Beats Electronics, LLC
In a letter brief filed, November 28, in support of Beats Electronics, LLC’s Petition for Review in Jibe Audio, LLC v. Beats Electronics, LLC, WLF encouraged the California Supreme Court to grant review and revise California’s version of the parol...
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Ziglar v. Abassi
On November 25, 2016, WLF filed an amicus brief encouraging the US Supreme Court to overturn a US Court of Appeals for the Second Circuit decision that would expose former federal officials—including former attorney general John Ashcroft and former...
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Gordon v. Consumer Financial Protection Bureau
On November 17, 2016, WLF filed a petition with the US Supreme Court asking it to review and ultimately overturn a US Court of Appeals for the Ninth Circuit decision that upheld a massive judgment against our client, Chance Gordon. The Ninth...
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National Federation of Independent Business v. Perez
On November 16, 2016, the U.S. District Court for the Northern District of Texas permanently enjoined the Department of Labor’s new Persuader Rule, in part for violating the First Amendment. As WLF’s brief argued, the new rule facially discriminates...
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Bristol-Myers Squibb Co. v. Superior Court
On November 10, 2016, WLF asked the U.S. Supreme Court to review (and ultimately overturn) a California Supreme Court decision that ignores constitutional limits on the authority of state courts to exert personal jurisdiction over out-of-state...
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In re: Communications Regarding Unapproved Uses of Approved Medical Products
On November 9, 2016, WLF attorney Greg Herbers testified before a public meeting the Food and Drug Administration called to solicit views on medical-product manufacturers sharing information with healthcare providers about lawful off-label uses of...
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Murray Energy Corp. v. EPA
On November 8, 2016 WLF called on the US Court of Appeals for the Sixth Circuit to overturn EPA regulations that assert greatly expanded Clean Water Act (CWA) regulatory authority by adopting a very broad definition of the “waters of the United...
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In re Zoloft Products Liability Litigation
On October 18, 2016, WLF asked the United States Court of Appeals for the Third Circuit to affirm a district court decision that carefully and reasonably applied Daubert’s admissibility standard for expert testimony. WLF’s brief urged affirmance of...
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New Jersey High Court Rejects Generic Preemption Defense When Label Updates “Unreasonably” Delayed
By Linda Pissott Reig, a Shareholder with Buchanan Ingersoll & Rooney PC in the firm’s Newark, NJ office, and Alexandre H. Gapihan, an Associate in the firm’s Washington, DC office.
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Comments Needed on Proposed Amendments to Federal Class Action Rules
By Christopher P. Gramling, Assistant General Counsel to Eli Lilly and Company in Indianapolis, IN.
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