Chevron Deference In California

In mid July, the House of Representatives passed the Separation of Powers Restoration Act of 2016, H.R. 4768 (SOPRA).  If enacted, the SOPRA would amend the federal Administrative Procedure Act to require a reviewing court to decide “de novo all relevant questions of law, including the interpretation of constitutional and  statutory provisions, and rules made by agencies”.   The

Has The California State Treasurer’s Office Gone Underground?

Late last month, the California State Treasurer’s Office announced a “move to stop ‘Pay-to-Play’ school bond campaigns”.  According to the announcement: [M]unicipal finance firms seeking state business will be required to certify that they make no contributions to bond election campaigns. Firms that fail to do so will be removed from the state’s official list

Giving A Hand To Mandamus

“Mandamus” is the first person plural present indicative active form of the Latin word meaning to command.  It is most likely the result of combining the Latin word for “hand”, manus, with the Latin word “to give”, do.  Some readers may be familiar with the religious holiday with the unusual name of Maundy Thursday.  The word “maundy” is

“Interim Final Temporary Rules”, Say What?

Visitors to the Securities and Exchange Commission’s website will find a pull-down menu entitled “Regulation”.  One of the items on that menu has the oxymoronic title of “Interim Final Temporary Rules”.  How can a rule be both interim (meaning provisional or for an intervening time period) and final (meaning, coming at the end)?  The nomenclature makes no

SEC Declines To Define “Mineral” In Resource Extraction Rule But Then Defines It Anyway

As reported by Broc Romanek yesterday, the Securities and Exchange Commission adopted (again) a resource extraction rule.  Congress had ordered the SEC to adopt a rule by April 17, 2011.  After belatedly adopting a rule, the U.S. District Court vacated the rule and sent it back to the SEC.  American Petroleum Institute v. SEC, 953

Clock Winds Down On Resource Extraction Disclosure Rule

Congress told the SEC to adopt a resource extraction disclosure rule by no later than April 17, 2011.  The SEC missed that statutory deadline by over a year.  After the SEC belatedly adopted a rule in 2012, the U.S. District Court for the District of Columbia vacated it and sent it back to the SEC. 

Did The SEC Staff Bypass The APA In Issuing New And Revised Non-GAAP Financial Measure C&DIs?

Earlier this week, the staff of the SEC’s Division of Corporation Finance issued several new, and rewrote several existing, Compliance and Disclosure Interpretations (“C&DIs”) relating to Non-GAAP Financial Measures.  Recently, the SEC has been signaling that it intends to crack down on company disclosures of Non-GAAP Financial Measures.  While some are likely to welcome additional guidance

Is The SEC On Schedule To Violate Another Law?

Last December, President Obama signed into law the Fixing America’s Surface Transportation Act (aka the “FAST Act“).  Buried in the FAST Act were several provisions intended to lighten the load of Securities and Exchange Commission compliance.  Section 72001 requires the SEC to issue regulations to permit issuers to submit a summary page on Form 10–K (17

Are California Statutes Authorizing Desist And Refrain Orders Facially Unconstitutional?

In December 2008, the Commissioner of Corporations issued a desist and refrain order based on alleged violations of the Corporate Securities Law and the Finance Lenders’ Law.  Nearly seven years later, the respondents challenged the order by filing a complaint in the U.S. District Court.  The complaint included four causes of action: (1) violation of

Do The Secretary Of State’s Criteria For Determining “Generally Recognized Presidential Candidates” Violate The APA?

Earlier this week, the California Secretary of State released his list of “generally recognized presidential candidates”.  These are the individual whose names will appear on California’s June 2016 primary ballot.  The Secretary of State listed 43 individuals from six political parties (American Independent, Democratic, Green, Libertarian, Peace & Freedom, and Republican).  It’s not too late to