The Regulator Rundown

One of the greatest challenges facing general counsel is keeping up with current legal issues while anticipating future liabilities. But it's difficult to know where to turn your attention first when dealing with employee complaints, shareholder pressures, potential litigation and a host of regulatory agencies enforcing a host of constantly changing laws and standards.

The "Regulator Rundown" provides some help on the last point. The pages that follow offer an overview of the enforcement trends at many of the major federal regulatory agencies and some ideas about how to stay off their radar screens.

But not everything coming from the commission is bad news. In March the agency held a roundtable about adoption of International Financial Reporting Standards. If the commission follows through on its plan, it would allow foreign issuers and U.S. companies to use standardized international accounting standards in their filings rather than converting to GAAP.

Environmental protection agency

Martin has made it an enforcement priority to go after companies that buy, sell or misuse individuals' private telephone records--penalizing carriers that fail to put in place procedures to protect customer data, seeking forfeitures from data brokers that sell private consumer information and urging the FTC to take action against other entities that misuse telephone records. The agency got a big boost on the third point when HP's pretexting scandal broke last year.

"The FCC immediately took up the pretexting issue, adopting regulations that make it harder to use consumer telephone records," says Rick Joyce, a partner at Venable. "Companies have to be wary of the law enforcement implications of their in-house use of customer data. Privacy is an enormous issue." In addition to its increased focus on protecting consumer privacy, the agency is still actively policing broadcast indecency--a trend set off by Janet Jackson's infamous 2004 Super Bowl "wardrobe malfunction."

The FTC also is planning to set standards for determining when single firm conduct violates antitrust laws. Although the agency has done some prosecution of single-firm conduct it deemed anti-competitive--most famously against Microsoft for its bundling of the Internet Explorer browser with its market-dominating Windows operating system--the agency has not set clear standards for when single-firm conduct violates the law. The FTC and DOJ held joint hearings on the topic in January 2007, but have not yet given companies any guidance.

"Often, this conduct lowers costs for consumers, but it's unclear when a company crosses the line into taking advantage of its market position," Allen says. "The agency is continuing to weigh how it should decide which activities ultimately reduce consumer choice."

occupational safety & health admin.

  • Voluntary compliance and outreach programs
  • Few new regulations
  • Recognition of compliant workplaces

For the past six years, OSHA has gone easy on corporate America. So much so, in fact, that many critics say the agency is not accomplishing its core mission--protecting worker safety.

"OFCCP has transformed itself," says Alissa Horvitz, shareholder at Littler Mendelson. "It's doing three times more audits than it was two years ago, and its regional offices are coordinating to bring large class action cases."

Not only has OFCCP become more aggressive with enforcement, it also is becoming smarter about identifying the companies it audits. In the past the agency relied on companies to self-disclose as government contractors on their EEO-1 filings. But many companies that were eligible for government contracts simply failed to do so. The agency's 2007 Contracts First initiative gave OFCCP access to the federal procurement database, which revealed a large number of contractors that never had been subject to an OFCCP audit. In April 2007 the agency scheduled compliance evaluations of 4,500 employers--many of which were caught off guard.

equal employment opportunity commission

  • Renewed focus on race discrimination
  • Fighting systemic discrimination
  • Work/family balance

Despite the fact that it recovered $376.4 million on behalf of discrimination victims in 2005, the EEOC was dissatisfied with its performance.

food and drug administration

  • Clamping down on marketing of prescription drugs for off-label uses
  • Protecting and promoting the development of generic drugs

department of health and human services

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