The Trump Administration has made clear that it is engaged in a regulatory reform effort. One stated goal of that effort is to ensure that administrative enforcement actions rely on legally binding authority such as laws and regulations and that enforcement actions are not brought for “violations” of non-binding materials such as guidance or staff views. The Department of Justice, which is the prime litigating authority for the federal government, has issued statements disclaiming department or agency guidance as legally binding authority. More recently, independent agencies, including the Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Office of the Comptroller of the Currency, and the Bureau of Consumer Financial Protection issued an interagency statement stating that “guidance does not have the force and effect of law, and the agencies do not take enforcement actions based on supervisory guidance." And, most recently, the Chairman of the Securities and Exchange Commission stated that “all staff statements are nonbinding and create no enforceable legal rights or obligations of the Commission or other parties.” While potentially a positive step, significant questions remain about the scope of the statements and how they will be implemented in practice.
This Teleforum will discuss the implications of these statements and this effort. Will this step rein in regulation through adjudication? Will this step reduce the issuance of guidance itself leading to enforcement against behaviors that could have been redirected through guidance? What role should the federal enforcement authorities play in signaling through guidance and statements what they find problematic when the laws are broad enough to not provide a clear message?
Featuring:
John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding LLP

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