Anthony Gaughan’s Post

Why should businesses and investors care about Loper Bright and Corner Post, the recent Supreme Court administrative law rulings? My latest Forbes op-ed explains how the rulings fit within a  larger campaign to dismantle key legal frameworks and institutions. A thread. https://lnkd.in/gNpQtjUE

An interesting perspective on the rule of law.

Save the date! On January 18, join our webinar featuring administrative law attorneys Dan Jarcho and C.J. Frisina. Delve into the aftermath of #SCOTUS oral arguments in Loper Bright and Relentless cases, exploring implications for regulated industries. A must-attend for legal insights!

The New York City Bar’s Committee on Professional Responsibility recommendation to amend Rule 5.4’s prohibition on fee sharing with nonlawyers can be summed up with three words: trust the lawyers. The Committee’s recommendation is a common sense approach to litigation finance that protects clients, recognizes that litigation finance is no different than other forms of financing law firms use everyday, and trusts lawyers to follow their ethical obligations. Thanks to Bloomberg Law’s Emily Siegel for highlighting the Committee’s recommendation, which is available in full here: https://lnkd.in/ejvMdCGx   A few key takeaways:   (1)    Presupposing that litigation finance will unduly influence a lawyer’s professional ethics more than any other financial arrangement with a nonlawyer is “an exercise in paternalism.” As the committee concludes, “there is no reason to treat funders secured by fees in individual cases any differently from other financiers of law firms.” (2)    Just as lawyers are trusted to self-regulate in other matters of professional responsibility, they should be trusted to abide by their professional obligations when entering into a financing arrangement with a litigation finance firm. (3)    Clients have a right to know about any such financial arrangement that may relate to their case and inquire about those arrangements. This helps avoid potential conflicts. 

New Jersey is one of the several states that, similar to Chevron, applies substantial deference to agency actions and interpretations of law. Since Loper Bright is facially limited to federal matters, New Jersey is likely to continue to defer to state agency actions and interpretations in its aftermath.  However, a careful review of state law reveals significant similarities between New Jersey agency deference and Chevron that will likely lead to similar challenges and a newfound ability to push back against state regulatory actions. Under New Jersey law, judicial review of agency actions is limited in scope and depends on the type of action being reviewed. An administrative agency’s final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious or unreasonable. Allstars Auto Group v. New Jersey Motor Vehicle Commissions, 234 N.J. 150, 157 (2018). This is based on a theory of agency competency where a reviewing court “must be mindful of, and deferential to, the agency’s expertise and superior knowledge of a particular field,” and “may not substitute its own judgment for the agency’s, even though the court might have reached a different result.” Id. at 158.  Taken a step further, New Jersey courts also give considerable weight to a state agency’s interpretation of a statute the Legislature has entrusted the agency to administer, and regulations promulgated in furtherance of the statute are presumed to be valid. In re Election Law Enforcement Com’n Advisory Opinion No. 01-2008, 201 N.J. 254, 262 (2010); New Jersey Ass’n of School Adm’rs v. Schundler, 211 N.J. 535, 549 (2012). Courts will defer to an agency’s interpretation of both a statute and implementing regulation, within the sphere of the agency’s authority, unless the interpretation is “plainly unreasonable.” East Bay Drywall v. Department of Labor and Workforce Development, 251 N.J. 477, 493 (2022).  While a court is not bound by an agency’s interpretation that is contrary to the statutory language or undermines the Legislature’s intent, the practice of affording agencies substantial deference in their actions and interpretations has withstood the test of time and is arguably stronger than ever. In a recent pronouncement of the deference afforded to agencies, the New Jersey Supreme Court explained that agency decisions are reviewed under an enhanced deferential standard, which comes from the understanding that a state agency brings experience and specialized knowledge within its field of expertise. Id. This, of course, stands in contrast to the Supreme Court’s focus on specifically-granted delegation of authority under Loper Bright. 

Save the date! On January 18, join our webinar featuring administrative law attorneys Dan Jarcho and Christopher (CJ) Frisina. Delve into the aftermath of #SCOTUS oral arguments in Loper Bright and Relentless cases, exploring implications for regulated industries. A must-attend for legal insights!

LinkedIn friends, a very consequential decision was issued by the Supreme Court today striking down Chevron deference. My Sidley colleagues have written the attached insightful piece on what this means for the future of regulatory litigation. Here is the teaser - hope you find it useful. The Supreme Court’s decision in Loper Bright represents a sea change in how courts review federal agencies’ constructions of statutes. While the Court sought to minimize the decision’s retroactive impact and notes that agency interpretations may still provide guidance, federal agency regulations and decisions will be subject to more searching judicial scrutiny, and we expect a significant increase in challenges to existing regulations, ongoing rulemakings, and existing precedents. While Loper Bright signals the end of an era, whether its impact will be gradual or revolutionary remains to be seen. Mindful of the potential flood of lawsuits challenging old decisions that relied on Chevron, the majority stressed that “holdings [in] cases that specific agency actions are lawful … are still subject to statutory stare decisis despite our change in interpretative methodology,” and that “[m]ere reliance on Chevron” is not a reason for overruling a precedent. At the same time, however, the Court noted that a prior decision’s reliance on Chevron may suggest that the precedent “was wrongly decided.” And, insofar as such a decision failed to grapple with legal arguments in deference to the agency, that too could undermine the force of stare decisis. In addition to judicial precedents, also in question will be agency rulemakings and other final actions that relied expressly or implicitly on the availability of Chevron deference. Sidley Austin LLP Gordon Todd

#BusinessLawToday | The Supreme Court decision in Loper Bright Enterprises v. Raimondo marks a tectonic shift in administrative law in the United States, with immediate impact. Read: https://ow.ly/UUl650T2fUe Michael Blumenthal Douglas Charnas James "Jim" Sandy David Waxman McGlinchey Stafford #BusinessLaw #BusinessLitigation #DisputeResolution #BusinessRegulation #RegulatedIndustries

If you get really jazzed about contract law, I recommend: 1. A thorough self-inventory 2. Reading this article https://lnkd.in/eAb3wypi

Are all SEC and FINRA Regulations Now at Risk? On June 28, #SCOTUS overruled the long-standing Federal agency deference test established in Chevron. The next steps in remaking administrative law are discussed in the latest #TeamTaft bulletin.