Supreme Court Allows Changes to Agencies’ Interpretive Rules without the Notice-and-Comment Rulemaking Process

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Today, Pillsbury attorneys Ken Quinn, Jennifer Trock and Graham Keithley published their client alert titled Supreme Court Allows Changes to Agencies’ Interpretive Rules without the Notice-and-Comment Rulemaking Process. The Alert discusses the Supreme Court’s recent order in Perez v. Mortgage Bankers Association, upholding an agency’s reversal of its own regulatory interpretation without requiring notice-and-comment rulemaking. It cautions that regulated entities now face considerable uncertainty in relying on agencies’ regulatory interpretations, even during enforcement actions. While the Court cautioned agencies from arbitrarily and capriciously changing their interpretations, particularly when the exiting interpretation is heavily relied upon, courts will likely continue to defer to the agency’s new interpretation.