On January 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling reversing the district court’s decision that Asarco could not proceed with its claims for cost recovery at a Utah Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mining site. The case is Asarco, LLC v. Noranda Mining, Inc.
Today, our colleagues Jenny Sheng and Julian Zou published a client alert discussing China’s recent restrictions on outbound investments by Chinese companies in certain industries. Among other things, they encourage Chinese firms and foreign investors engaged in overseas investments to be aware of these new trends and to prepare to adjust their strategic plans and overseas activities. The alert is titled China’s Recent Restrictions on Outbound Investments by Chinese Companies.
On August 17, 2016, the Fourth District Court of Appeals sitting in San Antonio held, in a 2 to 1 decision, that a City of 
Laredo ordinance prohibiting the distribution of “single use” plastic bags at check-out counters in order to reduce litter was preempted by state law, namely, Section 361.0961 of the Texas Solid Waste Disposal Act (SWDA). The case is Laredo Merchants Association v. City of Laredo, and it could be important for many Texas cities coping with solid waste management issues.
Can the federal government at times and, in all places, commandeer the states to act in a certain way? “Commandeering” refers to a federal requirement that state officials enact, administer, or enforce a federal regulatory program. There are limits to the federal government’s constitutional authority to do so, which are discussed in a recent decision by the U.S. Court of Appeals for the Third Circuit. On August 9, the Court of Appeals held that a 2014 New Jersey law, which partially repealed the state’s prohibitions on sports betting, was preempted by the federal Professional and Amateur Sports Protection Act. Consequently, the federal law prohibiting sports betting will prevail in New Jersey, where the Legislature was hoping to find a way to generate more revenues for its casinos and racetracks. The en banc Court of Appeals rejected New Jersey’s arguments that the federal law was unconstitutional because it “commandeered” the states to act in a way that violates the Constitution. This case is NCAA v. Governor of New Jersey. Of interest, the U.S. Supreme Court has held that, under the commandeering doctrine, the federal government cannot compel or coerce the states, as separate sovereigns, to enact legislation demanded by the federal government.
Also on August 9, 2016, the U.S. Court of Appeals for the DC Circuit held that the 
administrative law judges (ALJ) employed by the Securities and Exchange Commission were not “Officers” as that term is employed by the Constitution because their actions were also subject to review by the Commission. Since they are not constitutional officers, their decisions cannot be set aside simply because they were not appointed in accordance with the Appointments Clause. This case is Raymond J. Lucia Companies, Inc., et al., v. SEC. This ruling would appear to apply to many ALJS employed by the federal government.
Photo: KOMUnews, Airport Advisory Determines Future Plans After Election Results, Taken April 3, 2013 – Creative Commons
The federal Consumer Financial Protection Bureau (CFPB) was urged this week by some in Congress to speed up its rulemaking aimed at arbitration provisions in consumer contracts used by companies offering payment services or financial products to consumers. In May, the preliminary rule was released. In Arbitration Provisions Mauled by Consumer Watchdog, my colleagues Amy Pierce, Andrew Caplan, and I discussed the proposed rule and the potential new reality for all consumer facing companies. At the heart of the proposal, the CFPB would ban consumer financial services providers from requiring consumers to waive class action rights in connection with pre-dispute arbitration clauses. (In a minor victory for the industry, the CFPB has not outright banned pre-dispute arbitration agreements—at least not yet.)
Additional Sources: CFPB’s Report to Congress: To Arbitrate Consumer Financial Services Claims or Not; CFPB’s Arbitration Study—A Warning to Consumer Financial Service Companies
Photo: CafeCredit.com, CFPB, Uploaded June 13, 2016 – Creative Commons
My colleague Mark Elliott, in Open Wide: FOIA Reform Expands Public Access to U.S. Government Information, discusses the bipartisan Freedom of Information Improvement Act of 2016 (S. 337) 
signed into law by President Obama’s on June 30. The bill’s most notably requirement is that the government operate under a “presumption of openness” and help protect the public from government secrecy. Its goal otherwise is to make it more difficult for agency officials to withhold government records sought under the Freedom of Information Act (aka FOIA).
Photo: J. Albert Bowden II, Keep Calm and Use FOIA, Taken April 1, 2014 – Creative Commons
Pillsbury attorney Julia Judish provided commentary on the U.S. Supreme Court’s recent ruling in Encino Motorcars, LLC v. Navarro that vacated a Ninth Circuit ruling after holding that Department of Labor Fair Labor Standards Act regulations were not entitled to deference because they were issued without adequate explanation. In Attys React To High Court’s Auto Service Advisers OT Ruling, Judish stated:
“The Encino Motorcars decision will have little direct effect on the scope of FLSA overtime exemptions. The FLSA question presented in Encino — whether service advisers at auto dealerships are eligible for overtime — is unresolved. On remand, the Ninth Circuit will decide that question. The decision’s significance lies in its holding that an agency’s published regulations are not entitled to deference if the regulation departs from the agency’s long-standing prior interpretations, and if the agency has not published an explanation and analysis of its changed interpretation. Other published regulations may be subject to similar challenges.”
The Encino decision is but yet another recent decision calling into question whether deference is to be given to an agency’s rulemaking. The Chevron deference debate continues.
At the age of 21, in 1861, Oliver Wendell Holmes, Jr. and many of his friends enlisted in the Massachusetts Infantry after the
outbreak of the Civil War. He saw the worst of the war, and was nearly killed several times and suffered two grave wounds. By 1864, at the end of his enlistment, he had had his fill of it. Yet his experience left an indelible mark on him, as it did on most of his contemporaries, and he was grateful for the opportunity to serve his county in these great battles. Throughout his long life, he would recall where he was, on a day 50 or 60 years before, when the anniversaries of such battles as Balls Bluff and Antietam triggered his memories. Continue Reading ›
A recent U.S. Court of Appeals for the Second Circuit ruling is an important decision for corporations with foreign operations. In 2011, the U.S. Court of Appeals for the Second Circuit, in Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 591 (2nd Cir. 2011), held that the Alien Tort Statute (ATS) does not regulate corporate conduct because customary international law does not recognize corporate liability, and therefore the litigation against the defendant could not proceed in the federal courts on the basis of the ATS. The defendant was alleged to have violated environmental human rights in the Nigeria. That ruling was very controversial, and an appeal was made to the U.S. Supreme Court, which upheld that ruling, but on different grounds. The Court held that the ATS is subject to a presumption against the extraterritorial application of domestic statutes, and that presumption had not been overcome by the plaintiffs. Other circuit have issued rulings which disagreed with the Second Circuit, but the original Kiobel decision is still the law of the circuit.
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