On August 17, 2020, the Bureau of Industry and Security (BIS) at the Department of Commerce announced it was tightening restrictions on Huawei’s access to American technology through a new rule that: (1) further amends BIS’ foreign direct product (FDP) rule to restrict Huawei’s access to items produced using U.S.-origin
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Administrative Law
Davis Polk Financial Services Regulatory Reform Tool—2020 Vision Edition
Financial services regulatory reform will continue to be active in 2020, with developments percolating in all three branches of government. As we observe the changing landscape, here is the 2020 Vision Edition of our reference tool, which provides context and summarizes current developments across a range of key regulatory areas,…
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It’s Time to Rebuild the Role of Bank Legal Departments
In an article in the ABA’s Business Law Today, partner Meg Tahyar expresses concern about a recent trend in which the role of banks’ legal staffs has been constrained and reduced as separate risk and compliance functions have grown in prominence. She says this is the opposite of the trend…
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Davis Polk Financial Services Regulatory Reform Tool—Fall Focus Edition
Financial services regulatory reform continues to evolve in 2019. As we observe the changing landscape, here is the Fall Focus Edition of our reference tool, which provides context and summarizes current developments across a range of key regulatory areas, agencies and actors. We will continue to track these issues and…
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Davis Polk Comments on Federal Reserve’s Proposed Rule on Confidential Supervisory Information
Navigating the outdated rules on confidential supervisory information has become increasingly difficult in the digital world because the rules have their origin in the paper-based world of 1967, when they were first enacted. In the meantime, the amount and type of information made available by the banking agencies to banking…
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Kisor v. Wilkie: Auer Deference Lives On, But In What Form?
The Supreme Court in Kisor v. Wilkie has declined to overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., instead narrowing deference to a federal agency’s interpretation of its own ambiguous regulations by putting in place new guideposts around its use. What this means for Auer…
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Additional Clarity Could be Coming on the CFPB’s “Abusive” Acts or Practices Authority—But Don’t Hold Your Breath
By Jon Leibowitz, Joseph Kniaz & Margaret E. Tahyar on
The main lesson from the CFPB symposium on “abusive acts or practices” is that there won’t be any clarity anytime soon. In response to long-lasting concerns from the financial services industry that the indefinite scope and meaning of what amounts to an “abusive” act or practice generates uncertainty and impedes…
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SCOTUS Expands Scope of FOIA Trade Secrets and Commercial Information Exemption
The Supreme Court has updated an important Freedom of Information Act (“FOIA”) exemption for the digital age. In Food Marketing Institute v. Argus Leader Media, the Supreme Court this week significantly expanded the scope of FOIA Exemption 4, which shields from disclosure “trade secrets and commercial or…
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Davis Polk Financial Services Regulatory Reform Tool—Summer Spotlight Edition
Financial services regulatory reform continues to evolve in 2019. As we observe the changing landscape, here is the Summer Spotlight Edition of our reference tool, which provides context and summarizes current developments across a range of key regulatory areas, agencies and actors. We will continue to track these issues and…
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A Tale of Two Guidances—New Principal Deputy Associate Attorney General Claire McCusker Murray Speaks on DOJ Efforts to Rein in Subregulatory Guidance
Posted in Administrative Law, Guidance & FAQs
There are two kinds of guidances, according to recently appointed Principal Deputy Associate Attorney General Claire McCusker Murray, which should be treated quite differently.[1] Her explanation is worth quoting at length:
The key is to distinguish between two categories of guidance, the part that mirrors what the law requires