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Competitive Enterprise Institute


End Excessive Fees in Class Action Litigation

Tue, 20 Mar 2018 13:49:59 +0000

The New Jersey Law Journal Editorial Board praises CEI's Center for Class Action Fairness and their action on the Anthem class action case. 

Competitive Enterprise Institute blew the whistle on this application, and rightly so. Anthem’s disclosure of the data breach triggered dozens of lawsuits all over the country. They were consolidated in Judge Koh’s court. Eight firms competed for leadership positions; she trimmed the list to the four applicants. Their steering committee originally assured her “No one other than the attorneys and firms proposed here will necessarily work on this case” but they brought 49 more firms into the case. They passed out $3.5 million in work to the four firms the court had excluded, and another $10 million to 45 other firms, and then they engaged 53 law firms. “If I thought eight was too many, what made you think I wanted 53 firms churning on this case?” Judge Koh asked. They paid 329 lawyers (100 were partners) millions of dollars, more than two dozen of whom were contract attorneys charging $300-$400 per hour to perform low-level work such as document review for which $50 per hour is the usual fee. “I would like you to find a single paying client that would have approved these types of markups in a contract attorney!” Judge Koh challenged.

The court has appointed a special master to review the fee applications and report his conclusions and recommendations for appropriate fee awards. He certainly will scrupulously review the requested fees of the more than 100 partners and two dozen contract attorney who charged $300-400 for their pedestrian work. Maybe, one commentator facetiously has suggested, “the Special Master can bring on a few $400 contract attorneys to help sort through the bills faster?” We commend Competitive Enterprise Institute and Judge Koh for a step toward restoring public confidence in the cost of the litigation process.

Read the full editorial here.

Monday, March 19, 2018
Media appearance type: 

In blockbuster antitrust trial, Big Tech looms in background

Tue, 20 Mar 2018 13:41:05 +0000

Yahoo News talks to Ryan Radia about the antitrust implcations in the AT&T and Timewarner merger case.

A key question in the case is whether it represents a new approach to antitrust which could chill future mergers and acquisitions.

Ryan Radia of the Competitive Enterprise Institute, a Washington policy group, expressed concerns about a growing trend toward what some call a "hipster" antitrust approach based on the notion that big business is bad and that any concentration could be harmful.

"It's hard to say whether this portends a different direction for antitrust," Radia said.

"There is a chance that some in this administration want to take antitrust in a different direction, but also that a future administration could use this as precedent."

Read the full article here.

Saturday, March 17, 2018
Referenced experts: 
Ryan Radia
Media appearance type: 

CEI Comments to NHTSA on Removing Regulatory Barriers for Vehicles with Automated Driving System

Tue, 20 Mar 2018 13:04:15 +0000

View Full Document as PDF On behalf of the Competitive Enterprise Institute (“CEI”), I respectfully submit these comments in response to the National Highway Traffic Safety Administration’s (“NHTSA”) Request for Comment on Removing Regulatory Barriers for Vehicles With Automated Driving Systems (“RFC”).[1] CEI is a nonprofit, nonpartisan public interest organization that focuses on regulatory policy from a pro-market perspective.[2] CEI previously submitted comments to NHTSA in response to its Request for Comments on the Federal Automated Vehicles Policy in September 2016,[3] and again submitted comments to NHTSA in response to its Request for Comments on the Automated Driving Systems: A Vision for Safety in September 2017.[4] CEI’s Scribner appeared on a discussion panel at NHTSA’s December 12, 2016, Federal Automated Vehicles Policy Public Meeting and participated in the U.S. Department of Transportation’s March 2018 Automated Vehicle Policy Stakeholder Discussion.[5] Our comments are structured to correspond to the numbered questions posed in the RFC regarding regulatory barriers to vehicles equipped with automated driving systems (“ADS”) under 49 C.F.R. Part 571 Federal Motor Vehicle Safety Standards (“FMVSS”). RFC Responses 3. Do you agree (or disagree) that the FMVSS provisions identified in the Volpe report or Google letter as posing barriers to testing and certification are, in fact, barriers? Please explain why.[6] As NHTSA’s response to Google’s November 2015 letter indicates, a number of the potential certification issues identified during the driver reference scan of Volpe’s 2016 preliminary report can be addressed by NHTSA interpreting a vehicle’s self-driving system to be the “driver” or “operator.” Others, however, would require FMVSS amendments promulgated through the rulemaking process. This is particularly true of ADS-equipped vehicles that assume no human ability to direct the vehicle in real-time and which call for reconfigured cabin layouts, potential problems that were highlighted in Volpe’s automated vehicle concepts scan. Further, letters of interpretation and exemption requests should only serve as temporary mechanisms for allowing ADS deployment. As the former is nonbinding and applicable only to a specific set of facts presented by an individual manufacturer and the latter involves case-by-case approval, NHTSA’s longstanding self-certification regime can only be effectively maintained in light of ADS if NHTSA conducts the necessary rulemakings. These rulemakings could clearly exempt ADS equipment and ADS-equipped vehicles from unnecessary FMVSS requirements or amend FMVSS to explicitly consider ADS and ADS-equipped vehicles. 5. Are there ways to solve the problems that may be posed by any of these FMVSS provisions without conducting additional research? If so, what are they and why do you believe that no further research is necessary? For example, can some apparent problems be solved through interpretation? If so, which ones?[7] NHTSA faces two related problems in adapting FMVSS for the ADS age: FMVSS were written prior to the development of ADS and ADS-related technical standards are expected to rapidly evolve in the coming years. A potential partial remedy would not require additional research from NHTSA, but would require legislative changes from Congress. The National Technology Transfer and Advancement Act of 1995 has required that, whenever possible, “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.”[8] In policies for implementing the aforementioned law, the Office of Management and Budget’s 1998 Circular A-119 instructed agencies to establish “a process for ongoing review of the agency’s use of standards for purposes of updating such use.”[9] NHTSA has long [...]

Elizabeth Warren’s Boomerang

Mon, 19 Mar 2018 14:30:47 +0000

The Wall Street Journal quotes Iain Murray's tweet on Elizabeth Warren's complaints about the CFPB:

Like Donald Trump, Ms. Warren might want to let an editor see her tweets before she sends them. Iain Murray of the Competitive Enterprise Institute quickly responded to Ms. Warren by tweeting, “If only the CFPB had any meaningful accountability to Congress . . .”

Someone get the smelling salts because Ms. Warren is down for the count.

As Mr. Murray and readers of these columns know, Ms. Warren designed the CFPB as an independent agency like no other precisely so it could ignore Congress. The bureau is funded not with an annual appropriation like the rest of the government, but by the Federal Reserve based on a request from the head of the CFPB. Congress thus can’t use its constitutional power of the purse to enforce public accountability.

Read the full article here.

Friday, March 16, 2018
Referenced experts: 
Iain Murray
Media appearance type: 
She designed the CFPB to be unaccountable. Now she’s upset about it.

Let our airlines compete: Maybe more dogs will reach their destinations

Mon, 19 Mar 2018 14:12:25 +0000

Glenn Harlan Reynolds quotes a recent interview with Marc Scribner in his USA Today column on airline competition and regulation:

When you deal with competitive industries, you generally encounter falling prices and a pronounced eagerness to make the customer happy.  When you deal with industries that are protected from competition, you generally encounter high prices and a pronounced arrogance toward customers.

As Marc Scribner of the Competitive Enterprise Institute, quoted by Welch, puts it: “If American consumers wish to enjoy improved service quality in air travel, they should demand that Congress repeal 90 years of anti-competitive federal law. Less regulation of air travel, not more, is the solution.”

Read the full article here.

Sunday, March 18, 2018
Referenced experts: 
Marc Scribner
Media appearance type: 
Why shouldn't the best foreign airlines be able to carry passengers between American cities?

CEI Files Closing Brief in Challenge To FCC’s Delay on Reconsidering Charter Merger Conditions

Fri, 16 Mar 2018 19:08:11 +0000

Today the Competitive Enterprise Institute filed its closing brief in its challenge to the Federal Communications Commission’s (FCC) 21-month delay on its petition concerning the Charter/Brighthouse/Time Warner cable merger. CEI’s June 2016 petition requested the agency to reconsider the conditions it imposed when it approved that merger. One of the dissenters from those conditions was Commissioner Ajit Pai, who is now FCC Chairman.

While the FCC has a statutory duty to respond to such petitions within 90 days, it has not acted on CEI’s petition for 21 months. CEI is requesting the DC Circuit Court of Appeals to grant CEI’s petition for mandamus and order the FCC to respond to the petition.

“It's clear that the FCC’s conditions harm consumers and are an unauthorized attempt to micromanage the internet at the public’s expense,” said Ryan Radia. “In opposing our request for mandamus, the FCC has taken a position that would turn its statutory duty to act quickly into mere congressional suggestion.”

Along with its brief, CEI filed a declaration from Robert W. Crandall, an expert on telecomm regulatory policy, confirming the harm to consumers from the merger conditions and supporting CEI’s standing.

CEI argued in its 2016 petition that the FCC has no authority to place merger conditions on Charter that increase costs for consumers, who will have to foot the bill for an overreaching federal agency.

In October of 2015 CEI filed comments saying the FCC should grant the merger, but without conditions. In May 2016, the FCC approved the merger but with the unlawful conditions. In June 2016, CEI filed its petition and to date has heard no response from the agency. In December 2017, CEI filed a petition requesting a writ of mandamus compelling the FCC to respond to CEI’s 2016 petition. Today CEI filed its reply brief in that lawsuit.

See more from CEI:

Friday, March 16, 2018
Media appearance type: 
Reply brief requests DC Circuit to order the agency to respond

Court Rules Against Obama Fiduciary Rule in a Victory for Middle Class Investors

Fri, 16 Mar 2018 12:44:33 +0000

On news that the Fifth Circuit Court of Appeals late Thursday struck down the Obama Labor Department's controversial fiduciary rule, Competitive Enterprise Institute financial policy expert John Berlau praised the consumer and investor implications of this decision and urged the Trump administration to respect the decision: The ruling by the Fifth Circuit Court of Appeals to vacate the Obama administration’s fiduciary rule is a victory for the rule of law and for millions of middle-class American savers and investors. The court rightly labeled as “arbitrary and capricious” the Labor Department’s issuing of this regulation that goes against Congressional intent and redefines “fiduciary” in a way that gives the department broad power over a broad swath of investment professionals servicing 401 (k)s and individual retirement accounts. The rule was also based on the false premise that most holders of 401(k)s and IRAs lacked the ability, in the Obama Labor Department’s words in the proposed regulation, to “prudently manage retirement assets on their own” and “distinguish … good investment results from bad.” As the Court noted, many companies have already pulled out of this market or reduced their services to middle-class investors as a result of this rule. The Trump Labor Department should respect this ruling and stay out of an area that Congress never intended it to venture into. Any new fiduciary standard should be issued, as Congress intended, by the Securities and Exchange Commission and should preserve and enhance investor choice and access to financial advice. The fiduciary rule added legal burdens on a broad swath of financial professionals, effectively deterring professionals from continuing to offer services to middle income investors. See: The Department of Labor’s Fiduciary Rule for Dummies (But Not the Dummies They Think We Are)   Image: Date: Friday, March 16, 2018Issues: Banking and FinanceReferenced experts: John BerlauMedia appearance type: News ReleasesTeaser: On news that the Fifth Circuit Court of Appeals late Thursday struck down the Obama Labor Department's controversial fiduciary rule, Competitive Enterprise Institute financial policy expert John Berlau praised the consumer and investor implications of this decision and urged the Trump administration to respect the decision: [...]

CEI Joins Coalition Letter Urging Congress to Enact the Global Trade Accountability Act

Thu, 15 Mar 2018 20:55:14 +0000

View Full Document as PDF To Members of Congress: We the undersigned free market organizations, representing millions of hardworking Americans, urge you to cosponsor S.177/H.R.5281, the “Global Trade Accountability Act,” introduced by Sen. Mike Lee (R-UT) and just introduced in the House by Rep. Warren Davidson (R-OH). If enacted, the legislation would strengthen Congressional oversight and accountability of trade-related decisions made by the Executive Branch. Article I, Section 8 of the United States Constitution gives Congress the authority to impose tariffs and regulate foreign commerce. Article II of the Constitution gives the President the power to negotiate international trade agreements. Over time, Congress has ceded much of its authority to establish and raise tariffs and restrict imports to the Executive Branch as long as certain conditions are met. This current arrangement gives the Executive Branch virtual carte blanche to raise tariffs or otherwise restrict imports in a manner that could trigger a costly and unnecessary trade war. Consistent with Article I, Section 8 of the Constitution, and similar in process to the REINS Act, the Global Trade Accountability Act would require Congressional approval of proposed Executive Branch trade measures aimed at raising tariffs or restricting imports. In short, it would allow Congress to assert its Constitutional authority over trade policy when appropriate. Trade policy has been unfairly maligned in recent years, but make no mistake: protectionism has an ugly history in the United States. The Smoot-Hawley tariffs of 1930 deepened and prolonged the Great Depression. Since World War II, however, a bipartisan consensus emerged and the United States began working to liberalize foreign trade between nations. This has paid enormous dividends both domestically and abroad. Regrettably, U.S. economic growth is now threatened by new tariffs on steel and aluminum used by U.S. manufacturers, along with repeated threats to terminate reciprocal zero-tariff trade agreements that benefit the United States. The Global Trade Accountability Act can prevent the United States from slouching toward protectionism. That is why we strongly urge you to cosponsor the Global Trade Accountability Act. Sincerely, Bryan Riley, Director National Taxpayers Union Free Trade Initiative Tom Giovanetti, President Institute for Policy Innovation Matt Kibbe, President Free the People David McIntosh, President Club for Growth Iain Murray, Vice President of Strategy Competitive Enterprise Institute Lisa B. Nelson, CEO ALEC Action Grover Norquist, President Americans for Tax Reform Clark Packard, Trade Policy Counsel R Street Institute Jason Pye, Vice President of Federal Affairs FreedomWorks Norm Singleton, President Campaign for Liberty Berin Szoka, President TechFreedom Jerry Taylor, President Niskanen Center David Williams, President Taxpayers Protection Alliance Date: Thursday, March 15, 2018Publication Type: Coalition LettersIssues: Business and Government[...]

Online Sales Taxes Make Government Bigger and Undermine Federalism

Thu, 15 Mar 2018 16:55:18 +0000

View Full Document as PDF The rapid growth of online retailing has prompted state and local government officials to seek greater authority to capture more sales tax revenue and brick-and-mortar retailers to allow states to “level the playing field” by collecting sales tax from retailers in other states who sell to their residents. A 1992 Supreme Court decision, Quill v. North Dakota, mandates that a seller must have a physical presence, or “nexus,” in the buyer’s state to be subject to the latter state’s sales tax. Far from a tax loophole, this is the principle of “no taxation without representation” in action. The seller, not the buyer, calculates and remits sales tax. While this arrangement can lead to different sales tax treatment among different retailers, it benefits consumers by preserving healthy tax competition among states. Policy Recommendation. Attempts to empower states to tax outside their borders are unpopular with voters and undermine both fiscal conservative principles and state sovereignty under America’s federal system. By contrast, an origin-based sales tax system provides a more equitable and efficient approach to Internet sales that preserves healthy tax competition among states. It would address the inequities of the current regime without the negative consequences from allowing states to tax non-residents. Under an origin-based system, tax is assessed at the point of purchase, as in a brick-and-mortar store. For example, if a Virginia resident buys socks online from a California seller, that purchase is taxed according to California’s tax rate and remitted to the Golden state. It is no different than if that Virginian flew to California to buy socks in person. Leading Proposals The Remote Transactions Parity Act (RTPA, H.R.2193 ), sponsored by Rep. Kristi Noem (R-S.D.), gives states unprecedented new powers to reach outside their borders to tax online sales. It creates an option for sellers to use tax compliance software known as Certified Solution Providers (CSPs), but does not compensate sellers for the costs of implementing and testing it. The bill gives lip service to protecting small sellers from cross-border audits, even though all states are already allowed to audit small sellers—those with under $5 million in sales—if the state has a “reasonable suspicion” of misrepresentation. It also contains a small seller exemption that provides some relief from compliance costs, but phases out completely in only four years—by which time all online businesses will be forced to act as tax-collection agents for every state with a sales tax.  Another proposal is a hybrid origin sourcing option, which was suggested by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) in the 114th Congress. This would require sales to be taxed in accordance with the tax base of the seller’s state—what is and is not subject to taxation—at the buyer’s state’s tax rate for remote purchases. In practice, this means an Etsy seller in California who sells a pair of socks to a buyer in Virginia would have to determine a) if the socks are taxable under California’s tax law and b) Virginia’s tax rate for that item. The sock seller would then remit the tax to California authorities, who would forward those funds to a multistate clearinghouse. The clearinghouse would then calculate an amount to send back to Virginia using a given formula. The issue has reached the courts. While Congress debated the issue, many states sought to expand the definition of nexus in order to trigger sales tax collection. These attempts, most notably by California, New York, and Colorado, worked their way through the courts with varying results. This culminated in the South Dakota legislature passing an intentionally unconstitutional remote state sales tax bill that helped launch a c[...]

Pruitt's climate clash was declared dead. There's a Plan B

Thu, 15 Mar 2018 14:45:58 +0000

E&E News talks to Myron Ebell about potential moves on several petitions revisiting endangerment findings.

Taking comment on the petitions would be much easier. A group of homeowners filed one petition the day of Trump's inauguration. Another petition was filed last February by the Competitive Enterprise Institute and board members of the Science and Environmental Policy Project (Greenwire, April 10, 2017).

To open a public debate, the agency could simply issue a notice asking for public comment on the petition. The move wouldn't create any obligation for EPA to take regulatory action, and it could score the administration some political points on the right.

"We would be happy if the EPA took our petition and the other petitions for reopening or reconsidering the endangerment finding and if they decided to consider those petitions in a public way," said Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute. Ebell led Trump's EPA transition team.

"Essentially, a red team could be a part of that process, a red team analysis of current climate science could be part of that process, and that would then allow them to make a better-informed decision about whether reopening the endangerment finding is a good idea or not," Ebell added.

Read the full article here.

Wednesday, March 14, 2018
Referenced experts: 
Myron Ebell
Media appearance type: