Author Archive: Brian Sanchez

As Suu Kyi visits US, Myanmar readies new foreign investment law

NAYPYITAW: Myanmar is making a push to overhaul rules on new foreign investment this week, officials said, as leader Aung San Suu Kyi bids to attract more overseas businesses to create jobs and improve the Southeast Asian country’s crumbling infrastructure.

Suu Kyi was meeting U.S. President Barack Obama later on Wednesday and could seek improved trade terms and an easing of U.S. sanctions that – while ostensibly targeted at the still-powerful military and its allies – are seen as stifling other investment from overseas.

New investment approvals have fallen since Suu Kyi took power in April this year, following her National League for Democracy’s (NLD) election victory in November, with some businesses and investors criticising her for failing to prioritise the economy.

Only a vague list of economic policies has emerged from the NLD during almost six months in office.

Foreign investment approvals in the first six months of this year totalled US$1.8 billion (£1.3 billion), according to state-owned media, compared with an annual figure of US$8 billion in 2014-15, when a quasi-civilian government was in power.

Aung Naing Oo, secretary of the Myanmar Investment Commission that approves major projects, said the political transition had meant a slow start to the year, but insisted the commission was on track to approve its targeted US$6 billion of investments in 2016-17.

“If everything goes well, our expectation is we will have a new and very attractive and very practical investment law before the end of 2016, or maybe by the beginning of 2017,” he added.

A planning and finance official said on Wednesday that the new Myanmar Investment Law had been approved by Minister Kyaw Win and should be submitted to the parliament this week.

Maung Maung Win, deputy minister for planning and finance, had told Reuters on Tuesday that the new law, governing both foreign and domestic investment, would improve the investment climate.

“There are more attractive points for the foreign investors,” Maung Maung Win said of the new law, which will widen access to long-term land leases and ease restrictions on transferring funds.

Long-term leases are currently restricted to big investors with permits from the investment commission, and the new law is expected to make it easier for smaller companies to secure tenancies, as well as levelling the playing field between local and overseas investors.

Some foreign investors have previously complained that protectionist measures left over from decades of military rule favour local firms.

Easing transfer restrictions should also make it easier for multinationals to repatriate profits.

STRATEGIC CONTROL

The new government, keen to take strategic control over investment, has brought the commission under closer supervision of the Ministry of Planning and Finance, Aung Naing Oo said.

“For the promotion of investment in Myanmar, the top leadership will play a very crucial role in the promotion of business, the promotion of investment, the promotion of Myanmar,” he said.

Under the law, tax concessions will be granted “for the purposes of supporting the country’s development by allowing investment in sectors which need to be developed, and for the proportionate development of the regions and states,” according to a section of the draft law reviewed by Reuters.

“The promoted sectors will be decided by the government – the cabinet,” Aung Naing Oo said.

Deputy minister Maung Maung Win said the government was still deciding on the sectors to prioritise.

But the government’s 12-point economic policy issued in July though – light on specifics – emphasised creating jobs, developing the rural areas where the majority of the country’s 51.5 million people live and building infrastructure to address issues such as chronic electricity shortages.

“You’re going to have to make your case and reason why your investment requires help and tax concessions,” said Thura Ko Ko, managing director of YGA Capital, a consultancy representing U.S. and regional private equity funds in Myanmar.

(Additional reporting by Aung Hla Tun in YANGON; Editing by Alex Richardson)

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Baker Donelson Earns Top 10 Ranking In Vault's Best Law Firms For Diversity

Baker Donelson has been ranked among the top 10 law firms in the country in the 2017 edition of Vault, Inc.’s “Best Law Firms for Diversity.” 

Baker Donelson ranked ninth in the country on Vault’s “Best Law Firms for Diversity” list. This national ranking includes five separate categories for diversity, with the overall ranking determined by a formula that weighs all the categories evenly. Baker Donelson was ranked among the top 10 law firms nationally in three of the five categories, including: 

Diversity for Women – Sixth Place

Diversity for Military Veterans – Ninth Place

Diversity for Individuals with Disabilities –Tenth Place 

“We are honored by this recognition and are proud of our attorneys and staff who are committed to enhancing firm culture by fostering an inclusive environment,” said Mark A. Baugh, chair of Baker Donelson’s Diversity Committee.  

Baker Donelson also ranked 13th in the country in the “Best Law Firms to Work For” list and achieved a first place ranking in the category of transparency for the fourth consecutive year. 

Launched in 2002, Baker Donelson’s Diversity Initiative is focused on recruiting, developing and retaining employees from diverse backgrounds, and creating a workplace that respects and values diversity while providing a fair opportunity for all employees to maximize the fullest extent of their abilities, said officials.

Since the launch of the Diversity Initiative, the increase in Baker Donelson’s diverse attorney population and the number of minority shareholders has far outpaced the firm’s overall growth. Recruitment and retention of female attorneys have improved as well, and women are strongly represented in leadership roles across the firm, from the president and chief operating officer to practice group leaders and office managing shareholders.

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and building trades unions call on government to uphold the rule of law on the Dakota Access Pipeline

Michael Tadeo | 202.682.8114 | TadeoM@api.org

WASHINGTON, September 13, 2016 – API President and CEO Jack Gerard and North America’s Building Trades Unions President Sean McGarvey highlighted the benefits of increased energy infrastructure and discussed recent administration actions surrounding the Dakota Access Pipeline and the potential impacts on the rule of law, American workers, and American consumers.

‘Infrastructure plays a critical role in maintaining and growing America’s energy renaissance and it’s important that our energy infrastructure is able to meet the needs of consumers and our growing economy,’ said API President and CEO Jack Gerard. ‘With the Dakota Access Pipeline, the administration’s recent attempts to change the rules, in the middle of the game, set a dangerous precedent for our country that could threaten other infrastructure projects like bridges, roads, and electricity transmission. Moving forward, it’s critical that the rule of law is followed as the need for new energy infrastructure grows.’

‘We are deeply disturbed by the unprecedented action taken by President Obama to supersede the decision of a federal court judge and halt the lawful construction of the Dakota Access Pipeline project. Union members have been relying on these excellent, family supporting, middle class jobs with family health care, pensions, and good wages for over six months,’ said North America’s Building Trades Unions President Sean McGarvey. ‘The administration’s attempts to shut down construction of the Dakota Access Pipeline show that it is putting politics ahead of the rule of law. We fear that President Obama has now set a dangerous precedent where political considerations can now thwart or delay every single infrastructure project moving forward.’

API is the only national trade association representing all facets of the oil and natural gas industry, which supports 9.8 million U.S. jobs and 8 percent of the U.S. economy. API’s more than 650 members include large integrated companies, as well as exploration and production, refining, marketing, pipeline, and marine businesses, and service and supply firms. They provide most of the nation’s energy and are backed by a growing grassroots movement of more than 30 million Americans.

###

API – American Petroleum Institute published this content on 13 September 2016 and is solely responsible for the information contained herein.
Distributed by Public, unedited and unaltered, on 13 September 2016 19:05:10 UTC.


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API American Petroleum Institute : and building trades unions call on government to uphold the rule of law on the Dakota Access Pipeline

Michael Tadeo | 202.682.8114 | TadeoM@api.org

WASHINGTON, September 13, 2016 – API President and CEO Jack Gerard and North America’s Building Trades Unions President Sean McGarvey highlighted the benefits of increased energy infrastructure and discussed recent administration actions surrounding the Dakota Access Pipeline and the potential impacts on the rule of law, American workers, and American consumers.

‘Infrastructure plays a critical role in maintaining and growing America’s energy renaissance and it’s important that our energy infrastructure is able to meet the needs of consumers and our growing economy,’ said API President and CEO Jack Gerard. ‘With the Dakota Access Pipeline, the administration’s recent attempts to change the rules, in the middle of the game, set a dangerous precedent for our country that could threaten other infrastructure projects like bridges, roads, and electricity transmission. Moving forward, it’s critical that the rule of law is followed as the need for new energy infrastructure grows.’

‘We are deeply disturbed by the unprecedented action taken by President Obama to supersede the decision of a federal court judge and halt the lawful construction of the Dakota Access Pipeline project. Union members have been relying on these excellent, family supporting, middle class jobs with family health care, pensions, and good wages for over six months,’ said North America’s Building Trades Unions President Sean McGarvey. ‘The administration’s attempts to shut down construction of the Dakota Access Pipeline show that it is putting politics ahead of the rule of law. We fear that President Obama has now set a dangerous precedent where political considerations can now thwart or delay every single infrastructure project moving forward.’

API is the only national trade association representing all facets of the oil and natural gas industry, which supports 9.8 million U.S. jobs and 8 percent of the U.S. economy. API’s more than 650 members include large integrated companies, as well as exploration and production, refining, marketing, pipeline, and marine businesses, and service and supply firms. They provide most of the nation’s energy and are backed by a growing grassroots movement of more than 30 million Americans.

###

API – American Petroleum Institute published this content on 13 September 2016 and is solely responsible for the information contained herein.
Distributed by Public, unedited and unaltered, on 13 September 2016 19:05:10 UTC.


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NY settles: Firms to stop tracking children online







Albany, N.Y. • The state attorney general announced settlements Tuesday with Viacom, Mattel, Hasbro and JumpStart Games to stop them from using or allowing tracking technology on their popular children’s websites.

The settlements require Viacom, Mattel and JumpStart to pay penalties totaling $835,000 following a two-year investigation into violations of the 1998 federal law that prohibits unauthorized collection of children’s personal information on websites directed at users under 13.

Hasbro won’t pay a penalty because it was enrolled in a Federal Trade Commission-approved online-privacy program that had some problems, according to the attorney general’s office.

All four companies allowed tracking technology such as cookies on their websites in violation of the law, Attorney General Eric Schneiderman said. Such technology can be used by marketers and advertisers to target potential customers.







“The way the law is structured, the companies have the primary obligation to police their sites,” Schneiderman said. “When we notified them, they took immediate action.”

Their websites include Viacom’s Nick Jr. and Nickelodeon; Mattel’s Barbie, Hot Wheels and American Girl; JumpStart’s Neopets; and Hasbro’s My Little Pony, Littlest Pet Shop and Nerf.

Hasbro said it cooperated with investigators and will closely monitor companies working on its behalf.

“We are rolling out a new, stricter online privacy protection policy for our partners, and enacting new protocols and technology to scan our digital properties for any cookies, widgets or other applications that may violate our policy,” spokeswoman Julie Duffy said.

Mattel said it takes online privacy and security seriously.

“Any time we become aware of a question about whether a Mattel-operated website is in full compliance with the Children’s Online Privacy Protection Act or other laws, we take prompt action to investigate and, if necessary, remedy the situation and look for additional controls to avoid a re-occurrence,” spokesman Alex Clark said.

Viacom and JumpStart didn’t immediately reply to requests for comment.

“Now children live online and we have to police the internet as we seek to police our streets,” Schneiderman said. “You track people so you can sell things to them. … I don’t want there to be a dossier on any child that can be used later to scam them.”

All four companies signed agreements to regularly scan their children’s websites to screen advertisers’ or others’ data collection practices to ensure legal compliance and update their privacy policies. Penalties are $500,000 for Viacom, $250,000 for Mattel and $85,000 for JumpStart.

The New York investigation is continuing. Schneiderman said he hopes other companies with websites for children will now remove similar tracking by advertisers or other third parties, he said, adding that there’s an open debate about the need for a similar law to protect adults’ privacy. “It’s open season on adults,” he said.








































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Security firms press FBI's Comey on pre-Orlando intel

FBI director James Comey faced questions Tuesday about the agency’s handling of the Orlando shooter investigations prior to the day that Omar Mateen massacred 49 people in a Florida dance club June 12.

Comey spoke to a group of security-industry professionals at the Orange County Convention Center, three months and a day after the attack.

The head of the National Association of Security Companies asked why the FBI didn’t inform global security company G4S, which had employed Mateen as an armed security guard at Indian River County courthouse until 2013, that he was on the terror watch list.

“When the FBI is investigating someone, it can be perceived as a little disappointing for that employer not to know that a guy is on the terror watch list, especially if he’s an armed security guard,” said Steve Amitay, executive director at NASCO, when Comey took questions from the audience.

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Security firms press FBI's Comey on pre-Orlando shooting intel

FBI director James Comey faced questions Tuesday about the agency’s handling of the Orlando shooter investigations prior to the day that Omar Mateen massacred 49 people in a Florida dance club June 12.

Comey spoke to a group of security-industry professionals at the Orange County Convention Center, three months and a day after the attack.

The head of the National Association of Security Companies asked why the FBI didn’t inform global security company G4S, which had employed Mateen as an armed security guard at Indian River County courthouse until 2013, that he was on the terror watch list.

“When the FBI is investigating someone, it can be perceived as a little disappointing for that employer not to know that a guy is on the terror watch list, especially if he’s an armed security guard,” said Steve Amitay, executive director at NASCO, when Comey took questions from the audience.

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Can a state immunize its agencies from federal antitrust law through judicial review?

On Friday, I wrote about an amicus brief, for me and 54 other antitrust and competition policy scholars, that I wrote in Teladoc v. Texas Medical Board, a Fifth Circuit case involving the antitrust state-action immunity doctrine.

For a summary of the argument, see that post, but here’s an even shorter background: the Texas Medical Board wants to regulate telehealth providers; one such provider, Teladoc, sued the Board under federal antitrust law, arguing that the rule the Board promulgated was anticompetitive; and the Board claimed that it was immune from federal antitrust law as a state agency. Agencies composed of market participants need to be actively supervised by the state if they want to get immunity; so the question here is whether state-court administrative-law judicial review counts as “active supervision” within the meaning of the doctrine.

On Monday, I reproduced the first part of the brief, on “The Problem of Occupational Boards Dominated by Market Participants”. Today, I’ll reproduce Part II of the brief, on why “Texas Administrative-Law Judicial Review Is Not Active Supervision”.

* * *

The Board relies on a single feature of Texas law that, in its view, constitutes active supervision: state-court administrative-law judicial review. See Appellants’ Br. at 36, 45 (calling such review “sufficient”). (Nonetheless, the Board spends many pages discussing other aspects of Texas law that it concedes are not active supervision; the (ir)relevance of that discussion is discussed in Part III, infra.)

But judicial review in Texas courts does not qualify as active supervision under Midcal. If judicial review is to be active supervision, it must at least address the merits of the specific anticompetitive decision; it must be de novo; and it must occur before the imposition of the market restraint without the need for costly litigation. See N.C. Dental, 135 S. Ct. at 1116; Elhauge, supra, at 716–17.

As this Part shows, Texas judicial review fails this test, for the following two reasons.

First, it occurs only if someone incurs the substantial cost of state-court litigation. This cost means that state judicial review might never occur—in which case there is no reason to think that disinterested officials have actually approved the Board’s specific decision. Moreover, such review is not guaranteed to occur before antitrust harm is suffered. This makes state judicial review the “‘mere potential for state supervision,’” which the N.C. Dental Court explicitly held inadequate. 135 S. Ct. at 1116 (quoting Ticor, 504 U.S. at 638).

But there is a second reason, which goes to the heart of administrative law: Judicial review, even the “substantive” kind, merely checks for adequate reasoning and consistency with the enabling statute sufficient to show that the rule is within the Board’s authority, and defers to the Board’s reasonable interpretations where there is ambiguity. But this is not the same as review of decisions “to ensure they accord with state policy,” which the N.C. Dental Court wrote was necessary. Id. Judicial review must at least be de novo to count as adequate supervision.

A. State Judicial Review Cannot Confer Antitrust Immunity if It Requires Costly Litigation or if It Is Post-Injury

First, state-court judicial review cannot confer antitrust immunity if it occurs only after costly litigation. State courts will not review a rule that no one challenges. But affected firms cannot always be expected to challenge Board rules. An aggrieved firm may decide that the expense of litigation is just too great. Sometimes, an agency rule may be a disguised form of cartel enforcement—for instance, benefiting all incumbent firms by setting a mandatory price. In such a case, the affected firms have no interest in challenging the rule. The cost of the rule falls on consumers, who (if they even have standing) usually cannot be counted on to challenge the rule: Each individual’s harm may be too small to justify the expense of litigation, and one cannot rely on the possibility of damages class actions. See Elhauge, supra, at 716 (“[T]he effort and time necessary to invoke state review can discourage and delay vindication of the right to a competitive market.”).

That “the ‘mere potential for state supervision is not an adequate substitute for decision by the State’” is one of the “few constants of active supervision.” N.C. Dental, 135 S. Ct. at 1116 (quoting Ticor, 504 U.S. at 638). Even if judicial review can be active supervision, there can be no assurance that the Board’s decision comports with state policy (as determined by disinterested officials) until after judicial review has been successfully completed.

Second, state-court judicial review cannot confer immunity if it occurs after injury is suffered. There is no guarantee of pre-implementation review: Like federal courts, Texas courts recognize the doctrine of ripeness, which “asks whether the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote,” and thus “serves to avoid premature adjudication.” Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). Aggrieved parties might thus not be able to challenge Board rules until after implementation.

The prospect of having to suffer harm before incurring the additional expense of a lawsuit can discourage firms from challenging the rule to begin with: They might simply conform their conduct to the (invalid) rule and never achieve the ripeness necessary for a challenge.

B. Judicial Review Is Deferential and Therefore Asks the Wrong Question

1. Judicial Review Must Not Only Be “Substantive” but Must Also Focus on Whether the Board’s Decision Accords with State Policy

N.C. Dental teaches that purely procedural review cannot constitute active supervision and that “[t]he supervisor must review the substance of the anticompetitive decision . . . to ensure [it] accord[s] with state policy.” N.C. Dental, 135 S. Ct. at 1116; see also Patrick, 486 U.S. at 102–05. At a minimum, judicial review must be substantive, and must focus on the merits of the anticompetitive aspects of the specific acts being challenged. See Cantor v. Detroit Edison Co., 428 U.S. 579, 595 (1976); 1A Areeda & Hovenkamp, supra, ¶ 226c2, at 204–05.

Thus, to support its argument that state judicial review is sufficient, the Board points out that “the Texas APA allows both procedural and substantive” challenges. Appellants’ Br. at 46 (citing Tex. Med. Ass’n v. Tex. Workers Comp. Comm’n, 137 S.W.3d 342, 346 (Tex. App. 2004)). But the mere label “substantive” is not enough for judicial review to be active supervision. The review must also ask the proper question: whether the Board’s decision “accord[s] with state policy” as determined by disinterested officials.

A simple example will show why. Texas has its own antitrust statute, Tex. Bus. & Com. Code Ann. §§ 15.01 et seq., which resembles federal antitrust statutes. Suppose Texas grants a Board the power to control access to a profession, as long as that power is used consistently with the state antitrust Rule of Reason.

Anyone aggrieved by the Board’s acts can go into state court and sue the Board under Texas antitrust law. Would the possibility of such state-court review constitute active supervision and thus (provided there was also clear authorization) preclude a later federal-court suit under the Sherman Act?

Obviously not. State antitrust review is of course substantive, not procedural. But it cannot constitute active supervision under Midcal. First, this would imply “the wholesale preclusion of federal antitrust law,” which is “an untenable reading of the Sherman Act.” Elhauge, supra, at 716. Second, the “substance” of this judicial review focuses on the wrong issue: whether the defendant’s acts are unreasonable in an antitrust sense, not (as Midcal requires) whether the Board’s acts comply with state policy as determined by a disinterested official. These are two different questions.

Thus, to be active supervision under Midcal, judicial review must not only be “substantive” in a generic sense, but in particular answer whether the merits of the Board’s specific policy have been actually approved by disinterested officials. In most cases, Texas administrative-law review—like Texas antitrust-law review in the hypo above—answers the wrong question. Administrative law cares whether a policy has means-ends rationality and is within the bounds of agency authority (which, in this case, is extremely broad). This is simply not the same question as whether the merits of the specific policy have been actually approved by disinterested officials.

In fact, in a sense, state judicial review asks the opposite of the correct question. Texas administrative law, like its federal counterpart, is characterized by deference to agencies when a statute is ambiguous. Deference regimes are founded on the belief that agencies are politically accountable and thus better able to fill statutory gaps. But when agencies are dominated by active market participants, N.C. Dental teaches that they are actually unaccountable because of the risk of self-dealing. Allowing self-interested agencies to fill gaps is the opposite of N.C. Dental’s insistence that their specific decisions be actually approved by disinterested officials. Therefore, deferential review is antithetical to active supervision.

2. Because Texas Judicial Review Is Deferential, It Does Not Truly Go to the Merits

A glance at the cases cited by the Board shows how pervasive deference is.

The Board notes that the Texas APA allows “substantive” (as well as “procedural”) challenges, and asserts that the purpose of such judicial review is to “ensure that agency rules are in accord with the policy objectives set by the Legislature.” Appellants’ Br. at 46 (emphasis omitted) (citing Gulf Coast Coalition of Cities v. PUC, 161 S.W.3d 706, 712 (Tex. App. 2005)).

As Gulf Coast Coalition explains, however, a reviewing court determines whether the agency acted consistently with its statutory authority; and when statutes are ambiguous, agencies are granted deference. 161 S.W.3d at 711–12. This is similar to review of federal agency action under the federal APA. See, e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983); Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

The Board also cites Texas Orthopaedic Ass’n v. Texas State Board of Podiatric Medical Examiners, 254 S.W.3d 714 (Tex. App. 2008). Appellants’ Br. at 47. There, the court wrote: “An agency’s construction of a statute that it is charged with enforcing is entitled ‘to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute.’” 254 S.W.3d at 719 (citation omitted).

This, too, sounds like Chevron review. Indeed, the Texas Supreme Court has agreed that its standard is “similar” to Chevron. See R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011).

Both state and federal administrative-law review are characterized by deference to agencies when there is ambiguity or discretion. As one commentator intimately familiar with Texas administrative law—now the Solicitor General of Texas—has noted, Texas law may be somewhat less deferential than Chevron, but the two systems are “analogous.” “[T]he issue of agency deference pervades our state’s legal system,” he writes; “[the Texas Supreme Court’s] statements on agency deference suggest a series of decision rules that relate to the federal Chevron inquiry.” Scott A. Keller, Texas Versus Chevron: Texas Administrative Law on Agency Deference After Railroad Commission v. Texas Citizens, Tex. Bar J., Dec. 2011, at 984, 984, 986, 988.

The deferential posture of state judicial review shows that such review cannot suffice under Midcal. Recall the purpose of the active-supervision requirement: to ensure that disinterested officials actually approve of the agency’s specific decision. But many statutes, including the ones here, are ambiguous. For example, one statute requires that physicians “practice medicine in an acceptable professional manner consistent with public health and welfare.” Tex. Occ. Code Ann. § 164.051(a)(6). Does this statute require examinations at an “established medical site”? Does it authorize disciplinary action for prescribing drugs as a result of an “online or telephonic evaluation by questionnaire”?

This is a far cry from the interpretation of unambiguous statutes, where the intent of the Legislature is clear—what federal law calls a “Chevron Step 1” issue—and administrative review is a straightforward matter of making sure agency action conforms to the statute. The Board cites a few such cases, where courts struck down agency action because of an “evident” “mismatch” with legislative objectives. Appellants’ Br. at 47 (citing Tex. Orthopaedic, 254 S.W.3d at 722; Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 475–88 (Tex. App. 2012)).

In such cases—where the agency’s decision is so unreasonable that it is clearly inconsistent with legislative judgment and the agency’s authority—judicial review tells us that the agency’s decision does not comport with state policy. And if a statute is so clear that it grants no discretion, and the agency’s action is exactly within that grant—in effect, if the Legislature commanded some act—then the agency’s decision is that of the State and immunity properly applies. But in most interesting cases, courts defer to exercises of agency discretion within broad and ambiguous grants, where the State’s decision on the precise issue is unknown.

The statute here is phrased broadly, using ambiguous language that authorizes many possible actions, depending on Board members’ values. Texas law lets agencies choose any of these possibly contradictory policies, provided they are reasonable. As in federal law, there is no absolute bar against agencies’ reversing their previous interpretations, if the new policy is also reasonable and the change is adequately explained. See, e.g., First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 645 & n.28 (Tex. 2008) (Hecht, J., dissenting) (citing Texas and federal cases supporting this rule).

Deferential review, which upholds agency action unless it is unreasonable, substantively irrational, or arbitrary and capricious, thus cannot be active supervision under Midcal. See also 1A Areeda & Hovenkamp, supra, ¶ 226c1, at 187. Though substantive, it answers the wrong question: Is the policy both adequately reasoned and somewhere within the large set of authorized policies? Having means-ends rationality and being not totally contrary to legislative policy are praiseworthy. But because many policies are both authorized and capable of being rationally justified, passing this test is not the same as being actually approved on the merits by disinterested officials.

Moreover, the premise of deference—that agencies are more accountable than the judiciary—is precisely inappropriate when agencies are dominated by self-interested actors. In such cases, N.C. Dental holds that there is no substitute for actual scrutiny of the merits of the specific anticompetitive decision. At a minimum, then, judicial review must be de novo. One can imagine judicial review without deference, but Texas law has squarely rejected such a vision.

* * *

In the next post, I’ll talk about the Texas Medical Board’s argument that other features of Texas law, though not themselves constituting active supervision, sufficiently constrain agency self-dealing and provide democratic accountability that they should make the active-supervision inquiry apply more weakly than it otherwise would.

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Three firms in running for fire-station contract

A fresh approach to public contracting used for Canal Winchester’s public-service building a few years ago is being used now by Madison Township for its new fire station on Noe Bixby Road in Blacklick Estates.

The project, estimated to cost about $3.5 million for a facility of about 11,000 square feet, will be constructed using a “design build” process instead of a traditional “bid build” process. A committee interviewed three firms Sept. 9 in preparation for making a recommendation to township trustees later this month.

Five companies submitted packages for the design build process, and the township selected three for interviews: Schueler Group from Lebanon, Ohio; Robertson Construction in Licking County; and Turner Construction, headquartered in New York with offices throughout the United States, including one in Columbus.

Trustee Victor Paini was involved in the Canal Winchester project, where he served on a charter review committee and now as a trustee in Madison Township.

“(Canal Winchester) had done several bid build projects, and sometimes the timing was a little longer than we had hoped, or there would be requirements that were a little too strict from the state or some other government agency,” Paini said.

“The other thing was the change process could be costly. If you got past a certain point and needed a change, that could have a serious impact on the bottom line.

“In the design bujild process, it gives you a little more flexibility without some of the zingers in the change control process.”

Under the traditional approach, a design firm prepares a detailed specification that is then put out for public bid, under a comparatively rigid bid process. Under the design build process, that process is relaxed, allowing the design specifications to offer a range of options, such as for lighting and other infrastructure.

“They will say, here is a range of lighting fixtures, you tell us what you want; here is a range of plumbing fixtures, you tell us what you want,” Fire Chief Robert Bates said. “In the standard process, what we call bid build, we would hire an architect as a separate entity as a professional contract, which is not bid under state law.

“If you vary from that (design) at all, it generates a change order, and there are costs with the change order,” he said. “The idea of design build is, you’re giving everybody a little flexibility to save money.”

Bates said the property at 3232 Noe Bixby Road, where Station 183 will be built, was once occupied by a derelict apartment building that was torn down as part of Franklin County’s land bank program. An existing parking lot was preserved, and will be used as part of the new fire station.

“We’re going to do everything we can to bring the project under budget,” Bates said. “The preliminary estimate from the criteria architect was sometime in the first quarter of 2018 (for the grand opening). We’ll have a better idea after we do the interviews with the design build firms.”

Fire Station 183 will be the third maintained by Madison Township. Each has five or six firefighters and EMS staff during any given shift, Bates said.

So far this year, the fire department has responded to about 3,150 EMS incidents and 657 fire reports, he said. During a typical year, Bates said, the township responds to about 20 “working fires,” where actual flames are engaged.

editorial@thisweeknews.com

@ThisWeekNews

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Commission investigating rise in premiums summons motor insurance firms to give evidence

Update 6.05pm: Insurance Ireland says it has received a witness summons from the Commission relating to its investigation.

It says it will comply with the witness summons and will co-operate fully with the investigation.

The firm says it is fully satisfied that it has no issue in relation to competitive practice and is confident that this will be confirmed through this process.

FBD Insurance has welcomed the investigation, saying they believe there are many factors that influence motor insurance costs in Ireland.

They said: “One of the main factors is the relatively high cost of bodily injury awards. These awards and associated legal costs are significantly higher than in other EU jurisdictions.

“We believe Irish awards should be benchmarked against other countries.

“In addition, we continue to call for increased powers for the Personal Injuries Assessment Board as a key stakeholder in creating an efficient and cost effective claims process for injured parties.”

Earlier: The competition commission has launched an investigation into pricing in the insurance market.

A number of companies and brokers have been issued with requests for information and witness summonses.

The Competition and Consumer Protection Commission (CCPC) issued witness summonses and information requests to major motor insurance providers and industry groups representing insurers and brokers today.

It comes as figures show the cost of motor insurance has risen by more than a third in just 12 months.

The average cost of car insurance has now reportedly reached €900 a year.

The CCPC said their investigation relates to insurers “openly signalling up-coming increases” in motor insurance premiums.

Isolde Goggin, CCPC Chairperson, said: “Markets work best where businesses vigorously and independently compete against each other for customers.

“Statements signalling future pricing predictions or intentions may result in a degree of unspoken coordination, which may breach competition law.

“Statements by senior industry players have raised serious suspicion as to whether there is a link between these messages and subsequent price increases.”

She said the evidence collected will help them to establish whether there has been a breach of competition law.

She said: “We know from our contacts with consumers that the sharp rise in motor insurance premiums has had a significant impact on them. We continue to closely monitor developments and will, if necessary, take action to stop specific anti-competitive practices in the motor insurance sector.”

If anyone believes they have evidence of a breach of competition law in the motor insurance sector, they can contact the CCPC.


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