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New State of Uncertainty Can Be Bad for Business The uncertainty caused by courts ruling in different ways will only be exacerbated by a companion SCOTUS case that says the six-year statute of limitations to contest regulatory actions doesn’t start ticking until a party is actually injured by the regulation. This gives groups on both sides yet another weapon to fight back against rules they don’t like. Essentially, anyone can start a new business or trade association and claim that a long-established regulation (one which businesses may have grown to rely upon for many years) is fair game for challenge through litigation. Impact: As any business leader knows, it becomes infinitely more difficult to proceed with business plans, invest in new ventures, and create long-term strategies if the entire landscape one builds around is constantly at risk of changing. Action items: Assess the risks of litigation, including whether your attention may be diverted from your core business activities, and whether you want your organization to be on the forefront of a regulatory challenge. Additionally, you may want to engage with policymakers in an effort to influence regulatory policies and protect your business interests. Coordinate with FP’s Government Relations Team and FP Advocacy to ensure your organization’s interests are heard in the halls of Congress and key regulatory agencies – not to mention in statehouses across the country.
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Judges May Create a Patchwork of Obligations Judges who now have greater authority to make their own decisions when it comes to the fate of federal regulations will unwittingly create a patchwork of varying obligations for multistate employers – and confusion for anyone trying to keep up with the inevitable shifting sands. Impact: Not every agency action will be susceptible to the same kind of attack, as the laws that created the agencies and gave them power to issue rules are all a little different – meaning each agency has a different amount of discretion to act on their own. But it will be harder and harder to guess what each individual judge will decide when it comes to each specific regulation at issue. Action items: Partner with outside counsel to determine a course of action, and track circuit splits and other legal outcomes that may vary among courts to devise a multi-state compliance strategy. FP can also assist you in monitoring legal developments, so be sure to subscribe to the FP Insight System to keep abreast of changes and interpretations in administrative law and federal regulations.
Businesses May See Helpful Regulations Thrown Aside
Many business advocates know they can attack what they perceive as troublesome rules by running to a business-friendly jurisdiction (somewhere in Texas, for example) and filing a challenge to the rule. Oftentimes these suits seek to challenge a regulation’s enforcement nationwide. On the other hand, worker advocacy groups and unions may do the same and run to worker-friendly jurisdictions (such as D.C., New York, Hawaii, or Washington state) to challenge agency regulations they don’t like. Impact: Now that Chevron is gone, forum shopping has already become even more fruitful. This could result in courts in worker-friendly jurisdictions more easily striking down business-friendly rules. Action items: Be ready to pivot and adjust your compliance strategies as court rulings start to reshape the regulatory landscape. You may also want to be proactive by commissioning or joining amicus briefs in legal challenges that are important to your industry to help influence judicial interpretations.
Conclusion This development will be worth tracking for the foreseeable future, so make sure you subscribe to Fisher Phillips’ Insight System to get the most up-to- date information. If you have questions, contact your Fisher Phillips attorney or the authors of this Insight.
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