Archives for 2014

National Law Journal: Post-Enron Law Snags Fisherman

Read the full story: National Law Journal

To bolster their conflicting arguments, each side engages in a classic battle of statutory interpretation. They turn to the dictionary for the ordinary meaning of “tangible object.” They fight over such canons of interpretation as “noscitur a sociis” and “ejusdem generis” with citations to a book by Justice Antonin Scalia and Bryan Garner. They look to the legislative history of Sarbanes-Oxley and they argue over Congress’ intent.


Yates finds support in briefs from the U.S. Chamber of Commerce, the National Association of Criminal Defense Lawyers, the Cato Institute, Pacific Legal Foundation, Cause of Action, former U.S. Rep. Michael Oxley of Ohio and 18 criminal law professors. They stress the overcriminalization issue, the lack of fair warning to Yates and others that their actions could bring criminal liability, and the canons of statutory interpretation.

National Law Journal: Justices Fear Over-Prosecution in Case Against Fisherman

Read the full story: National Law Journal

The United States, he added, has existed for more than 200 years “without this mega, all-inclusive, obstruction-of-justice statute with the intent to impede anything, any matter, that the possibility of the United States could or may or may never be interested in. [Congress] didn’t create it buried within the Sarbanes-Oxley Act and this court shouldn’t put it in there now.”


Reed Rubenstein, senior vice president for litigation of Cause of Action, an amicus party supporting Yates, said after watching the arguments, “I think they’re struggling to find a limiting principle that will cabin the government’s discretion. The obvious one is that this law was designed to apply to business records. To do anything else leads you into the land of absurdities that justices Breyer and Kennedy pointed out.”


Law360: Tiversa Attacks LabMD Witness’ Claims In Data Security Row

Read the full story: Law360

Reed Rubinstein, the senior vice president of litigation at Cause of Action, which is representing LabMD in the administrative proceeding, responded to Tiversa’s motion in a statement provided to Law360 on Monday.


“It’s clear that Tiversa does not want Mr. Wallace to testify, but all we’ve wanted since we began this case is for the facts and the truth to come out about the FTC’s overreach against LabMD,” Rubinstein said.

Greenwire: Justices to weigh prosecution of fisherman under white-collar law

Read the full story: Greenwire

The court’s willingness to take up the case appears to be part of a trend among the justices to address instances of potentially over-aggressive prosecution. Last term, they took up a case brought against a woman who tried to poison her husband’s mistress. The government prosecuted her under an international treaty on chemical warfare. The court ruled unanimously in Bond v. United States that the government had no need to use the treaty when myriad other criminal laws would have sufficed (Greenwire, June 2).


Notably, groups on both sides of the political spectrum have filed friend-of-the-court briefs backing Yates in the case. The U.S. Chamber of Commerce, National Association of Manufacturers, and American Fuel and Petrochemical Manufacturers have weighed in. The government accountability nonprofit Cause of Action has also filed an amicus brief.

SCOTUSblog: Argument preview: Can plain language be vague?

Read the full story: SCOTUSblog

In upholding Yates’s conviction under that provision, the U.S. Court of Appeals for the Eleventh Circuit rejected his lawyers’ argument that the law was aimed solely at a “document offense.”  The Eleventh Circuit said that, since the specific law did not define its terms, they were to be given their ordinary or natural meaning, and under that reading, a fish qualifies as a “tangible object.”


That is the ruling the Supreme Court agreed to review, last April, declining to also review a separate claim that Yates had made about exclusion by the trial judge of an expert witness his lawyers had wanted to call to the stand.


His petition was supported by the National Association of Criminal Defense Lawyers, urging the Court to hear the case and to act against the “over-criminalization” of conduct by expansive interpretations of federal laws by prosecutors.  The same argument was made by another advocacy group, Cause of Action.


Fox News: Fishy business at the Supreme Court: Florida Capt. John Yates’ sad saga

Fishy business at the Supreme Court: Florida Capt. John Yates’ sad saga

DOE Follows the Rules After HARDI’s Strong Stand Against Overreach

FOR IMMEDIATE RELEASE                                                         CONTACT:      

November 12, 2014                                              Mary Beth Hutchins, 202-400-2721

DOE Follows the Rules After HARDI’s Strong Stand Against Overreach

COLUMBUS, OHIO – Because of a settlement between the Department of Energy (DOE), the Heating, Air-Conditioning & Refrigeration Distributors International (HARDI) and other stakeholders, DOE reissued a Request for Information (RFI) on energy efficiency standards for residential central air conditioners and gas furnaces on October 31, 2014.  DOE’s RFI, published in the Federal Register, seeks public comment on its authority to develop energy efficiency standards through a “Direct Final Rule.”

Thanks to the government oversight and accountability group Cause of Action, HARDI was able to effectively halt administrative abuse by forcing the DOE to reassess its rulemaking.  DOE arbitrarily attempted to set a rule driving up energy costs for consumers and businesses without following proper procedures to protect the public’s right to have input and comment. This settlement requires DOE to respect the rule of law and is a significant victory for consumers and businesses.

HARDI Executive Vice-President & Chief Operating Officer Talbot Gee said, “We have said from the start that we believed the processes which led to this rule, litigation and settlement were broken. We were pleased to have secured a commitment from DOE to assess this issue and are pleased that HARDI’s comments on the matter are a key component of the request and hopefully the basis for fixing this broken process.”

Cause of Action’s Executive Director Dan Epstein said, “When federal agencies substitute their own agendas for the rules protecting the public’s right to have notice and to comment on proposed regulatory action, then government accountability and transparency are lost. Therefore, this notice, the first step by the DOE since HARDI’s successful settlement, is a major victory for all Americans who value fair government. HARDI’s members took a firm stand, and it has paid off for both consumers and for businesses.”

About HARDI:

Heating, Air-Conditioning and Refrigeration Distributors International (HARDI) represents more than 460 wholesale companies and 300 manufacturing associates as well as nearly 140 manufacturer representatives. HARDI members represent an estimated 85 percent of the dollar value of the HVACR products sold through distribution.

About Cause of Action:

Cause of Action a nonprofit, nonpartisan government accountability organization that investigates, exposes, and fights job-killing federal government regulations, waste, fraud, and cronyism.  Cause of Action uses investigative, legal, and communications tools to educate the public on how transparency and accountability protects taxpayer interests and economic opportunity. For more information, visit

To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins,