FedSoc Forums

Agency staff regulatory guidance, speeches, and settled enforcement actions can be helpful to the regulated community when seeking to comply with the law; but when agencies use those statements as if they are the law, thereby bypassing the Administrative Procedures Act, such actions can take the regulated by surprise and run afoul of due process. A recent example exists in the mutual fund industry with the SEC’s Share Class Selection Disclosure (SCSD) Initiative, which essentially holds investment advisors liable for not complying in 2013-2017 with a standard first articulated in 2018, but the use of regulatory guidance is being challenged across various agencies and jurisdictions. In the face of congressional push-back, bank regulators and the SEC last year clarified that agency staff “guidance” is not a rule and claimed that they “do not take enforcement actions based on supervisory guidance.” In connection with CFPB guidance regarding auto lending, the Government Accountability Office found that the guidance was a “rule” for purposes of the Congressional Review Act and thus subject to congressional disapproval. The Supreme Court also is considering cases such as Kisor v. Wilkie regarding judicial deference to administrative agencies. This panel will discuss the evolution of regulatory guidance, the limits on its appropriate role, and its current usage by administrative agencies.

Panelists:
Moderator: Paul Atkins, CEO, Patomak Global Partners
Barry Barbash, Senior Counsel, Willkie Farr & Gallagher LLP
Buddy Donohue, Mutual Fund Independent Director
Brian Rubin, Partner, Eversheds Sutherland

The Southern Poverty Law Center (501(c)(3)) and SPLC Action Fund (reportedly processing 501(c)(4) application) potentially comprise America’s most powerful and well-resourced public interest and advocacy operation. SPLC describes its mission as “fighting hate and bigotry and seeking justice for the most vulnerable members of our society.” SPLC distributes materials for public school educators that emphasize “anti-bias and social justice.” But a current op-ed in USA Today claims, to the contrary, that the SPLC operates to selectively target groups based upon agendized hate-naming and public shaming. SPLC has singled out 1020 “hate” groups and this labeling has been relied upon by government bodies, social media platforms, and non-governmental groups to act based upon ostensibly constitutionally protected expressive rights, rights of conscience, and association practices. Robert Muise, a presenter for this teleforum, is suing the Michigan Attorney General and Department of Civil Rights for utilizing SPLC characterizations to oversee activities of identified groups, including the one he co-founded, American Freedom Law Center.
Featuring:
Mat Staver, Liberty Counsel, sued Guidestar for branding LC an anti-LGBTQ hate group based upon SPLC designation; lost appeal in 4th Circuit based on Lanham Act analysis.

Robert Muise, American Freedom Law Center, currently suing State of Michigan attorney general office for establishing hate unit to target SPLC-named groups, including AFLC

Muhammud Rahim, Quilliam, settled with SPLC for 3.4M after threatened defamation suit for falsely naming Maajid Nawaz (reformist Muslim) a hater.

Justin Danhof, National Center for Public Policy Research, responding to SPLC in the corporate context

Moderator: Jeremy Tedesco, Alliance Defending Freedom, attorney on the Masterpiece Cakeshop litigation team -- and many other freedom of conscience matters.