In another example of its success in challenging agency rulemaking, S&C obtained a precedent-setting win from a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit, which remanded two SEC rules related to short-selling due to the agency’s failure to consider the economic impact of adopting both rules at once. Jeff Wall and Judd Littleton were named Law360 “Legal Lions” and runner-up Litigation Daily “Litigators of the Week” for the win.
S&C challenged two interrelated SEC rules, arguing principally that the SEC failed to justify how the rules interacted with each other. The court agreed with the argument that the SEC’s failure to justify the combined economic impact of these two related rules violated the Administrative Procedure Act. The case sets a critically important precedent that, in certain circumstances, agencies need to consider the interrelationship between new rules rather than simply justifying each rule in isolation.
S&C represented the National Association of Private Fund Managers, Managed Funds Association, and Alternative Investment Management Association, Ltd.
In previous APA challenges, S&C helped secure:
- a unanimous Sixth Circuit ruling striking down the FCC’s net-neutrality rules, which would have subjected internet service providers to a massive new regime of public-utility-style regulation, on behalf of telecommunications groups.
- the first nationwide decision vacating the FTC’s noncompete rule, which would have banned virtually all noncompete agreements across the country, on behalf of the U.S. Chamber of Commerce, Business Roundtable and other business groups.
- a summary judgment decision vacating the SEC’s rules expanding the definition of “dealers” who must register under the Securities Exchange Act, on behalf of the Crypto Freedom Alliance of Texas and the Blockchain Association.