Litigation Industry Tactics – An Example – Slowing or Blocking the Dodd-Frank Act

If at first you don’t succeed, try try try again. That old proverb is relevant to understanding the world of change through legislative lobbying and litigation. The basic point is simple for any interest group:

get what you can by lobbying, and then use litigation to block or delay laws you oppose.

An example of this part of the litigation industry is presented in this NYT article by Ben Protess. The article explains part of the process for "big business" entities working through the US Chamber of Commerce to bring suits seeking to block portions of the Dodd-Frank Act. This type of litigation is big business, and one of its top advocates is Eugene Scalia from Gibson Dunn, son of Justice Scalia. Set out below are key excerpts – the entire article is well-worth reading for anyone naive seeking examples of using litigation to block legislation.

"In recent weeks, lawyers and Wall Street trade groups have gathered in Washington to ponder the next big case. Lawyers branded one meeting, held by the United States Chamber of Commerce, as “Dodd-Frank Excesses,” according to two people who were notified of the meeting.

Until now, Wall Street relied largely on an army of lobbyists to chisel away at 300 new rules flowing from the S.E.C. and the Commodity Futures Trading Commission, among other agencies. But while lobbying might yield the occasional loophole, judicial rulings can halt new rules altogether.

“I would hope the agencies are taking to heart the potential consequences for Dodd-Frank rules,” said Eugene Scalia, the lawyer who won the proxy case on behalf of the Chamber of Commerce.

Hal S. Scott, a professor at Harvard Law School and a director of the Committee on Capital Markets Regulation, a research group that has been a critic of Dodd-Frank, said, “I do see lots of challenges coming down the pike.”

Regulators, reluctant to give in to industry pressure, are rushing to safeguard their rules from legal action. The commodity commission, having already delayed several Dodd-Frank rules for six months, is now studying the proxy case and considering adjustments to some proposed regulations, according to a person close to the agency. Earlier this month, the agency dispatched several staff members to meet with S.E.C. officials about the recent court decision."

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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