Agency Cannot Avoid Rulemaking By Contract

As has been noted over the years in this space, California strictly prohibits "underground regulations".   These are regulations adopted and enforced by state agencies without complying with the public notice and comment requirements of the...

Arizona Court Holds Judge Need Not Hear Case To Write Recommended Decision

California's Administrative Procedure Act requires that an administrative law judge preside over contested administrative hearings.  Cal. Gov't Code § 11512(a).  However, the agency determines whether the administrative law judge (ALJ) hears the...

Are Industry Comments The Only Comments That Matter?

Under the federal Administrative Procedure Act's informal rule making mandate, agencies must give interested persons an opportunity to participate in rule making through submission of written data, views, or arguments with or without opportunity for...

White House Orders Agencies To Offer Opinion Letters Or Does It?

Last month, the White House issued this fact sheet concerning two executive orders intended "to improve the transparency and fairness of government agencies and ensure that they are held accountable".  The fact sheet describes the "Transparency...

Plaintiffs Fail In Second Constitutional Challenge To DBO Desist And Refrain Orders

Three years ago, I wrote about a constitutional challenge to a desist and refrain order issued under the California Corporate Securities Law and the California Finance Lenders Law (nka the California Financing Law).  In Shurnas v. Owen, 2016 U.S....

Is Artificial Intelligence The Future Of Rulemaking?

Earlier this year, the Securities and Exchange Commission proposed a new rule establishing a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer when making a recommendation of any securities...

Staff Guidance - What Would California Do?

Recently, Securities and Exchange Commission Chairman Jay Clayton released a public statement emphasizing that "all staff statements are nonbinding and create no enforceable legal rights or obligations of the Commission or other parties."  The...

Did The SEC Violate The APA In Publishing Its Statement And Guidance on Cybersecurity Disclosures?

The federal Administrative Procedure Act is both straightforward and general.  It defines a "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe...

Was This Interim Final Rule More Final Than Interim?

In this post from July 2016, I took the Securities and Exchange Commission to task for  adding Item 16 to Form 10-K as an "Interim Final Rule".  As I then explained, Interim Final Rules constitute an end-run on the notice and comment requirements of...

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