1 / 18

Corporate Governance And The Regulatory Process - PowerPoint PPT Presentation

  • Uploaded on

12. Corporate Governance And The Regulatory Process. Administrative Agencies. Part of Executive Branch (e.g. SEC, EPA, FTC, FCC etc.) Yet Perform Legislative & Judicial Functions Regulations Due Process/Notice Requirements Act according to enabling statutes

I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
Download Presentation

PowerPoint Slideshow about 'Corporate Governance And The Regulatory Process' - nassor

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.

- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
Corporate governance and the regulatory process


Corporate Governance And The Regulatory Process

Administrative agencies
Administrative Agencies

  • Part of Executive Branch (e.g. SEC, EPA, FTC, FCC etc.)

  • Yet Perform Legislative & Judicial Functions

  • Regulations

  • Due Process/Notice Requirements

  • Act according to enabling statutes

  • Cannot act in an “arbitrary and capricious” manner

    • Sundance Assoc. v. Reno (Overly broad definition of “producer” in re anti-porn regulation)

  • Under APA

Administrative agencies1
Administrative Agencies


122 S.Ct. 431 (2001)

FACTS: An employee, Maria Gregory, of the United States Postal Service is disciplined four times for inappropriate behavior. After the first three disciplinary actions, Gregory filed grievances. The fourth disciplinary action resulted in Gregory’s termination. As a military veteran, Gregory’s status as a “preference-eligible employee” allows her to appeal her termination to the Systems Protection Board. The ALJ upheld Gregory’s termination. She appealed to have the full Board review this decision of the ALJ. Prior to the full Board’s final decision, a grievance panel concluded the first disciplinary action against Gregory was unjustified. The full Board refused to consider the outcome of the grievance and confirmed Gregory’s termination. Upon appeal, the Federal Circuit Court of Appeals vacated the Board’s decision and remanded the case with instructions for the Board to consider the outcome of the grievance. The Postal Service sought and was granted certiorari.

  • ISSUE: What standard should courts use when reviewing the decision of an administrative agency?

Administrative agencies2
Administrative Agencies


122 S.Ct. 431 (2001)

  • HELD: Court must defer to the judgment of the agency unless there is a finding, supported by substantial evidence, that the agency’s action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

  • REASONS: 1. Administrative agencies, as compared to reviewing courts, are better able to determine findings of fact and conclusions of law.

  • 2. In this case, the Federal Court does not establish the arbitrary, capricious, abuse of discretion conduct by the Systems Protection Board.

  • 3. The Board acknowledges it considers a grievance resulting in disciplinary action being overturned.

  • 4. This case is remanded to the Federal Court to decide whether the Board has reasonably met its standard of review.

Administrative agencies3
Administrative Agencies

  • Create/Enforce Majority Of Business Laws

  • Agencies Provide:

    • Specificity

    • Expertise

    • Protection

    • Regulation

    • Services

Administrative agencies examples

Federal Trade Commission

National Labor Relations Board

Equal Employment Opportunity Commission

Securities & Exchange Commission

Environmental Protection Agency

Federal Aviation Administration

Consumer Product Safety Commission

Federal Communications Commission

Federal Energy Regulatory Commission

Federal Reserve Board

Food & Drug Administration

Nuclear Regulatory Commission

Occupational Safety & Health Administration

Administrative Agencies Examples

Agency functions
Agency Functions

  • Rulemaking/Guidelines = Quasi-Legislative Power

  • Adjudicating = Quasi-Judicial, Fact-Finding & Applying Law

    • Cease & Desist

    • Consent

  • Advising

  • Investigating

Agency decisions
Agency Decisions

  • Public Notice Of Proposed Rules

  • Public Hearing

  • Citizen Letter Writing- Member Of Congress

Quasi judicial procedures
Quasi-Judicial Procedures







Admin. Law Judge

Evidence- Admissibility


Initial Decision


30 Days

Final Order

Judicial review of agency decisions standing to sue



Judicial Review Of Agency Decisions- Standing To Sue

  • Reviewability- Federal Administrative Procedure Act

  • Plaintiff- Aggrieved Party

Judicial review of agency decisions standing to sue1
Judicial Review Of Agency Decisions- Standing To Sue

  • Members of wildlife conservation and environmental organizations filed a lawsuit against the Secretary of Interior. This suit challenged the Secretary's decision that the Endangered Species Act governed the spending of funds within the boundaries of the United States and not the allocation of funds to be spent in foreign nations. The plaintiffs argued that the government must take into consideration the impact on endangered species of the expenditures of funds in foreign nations. The Secretary argued that the plaintiffs lacked standing to sue. Issue: Do these plaintiffs have the standing to challenge the Secretary's rule making? Held: No. The plaintiffs failed to demonstrate that they suffered an injury in fact. Even assuming that funded activities abroad threaten certain species, the plaintiff failed to show that one or more of their members would thereby be directly affected apart from the members' special interest in the subject. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

Judicial review of agency decisions rule making


Judicial Review Of Agency Decisions- Rule Making

  • Delegation Valid?

    • Definite- Violate Due Process?

    • Limited- Agency’s Power Limited

  • Broad Language

  • Authority Exceeded?

Review of adjudications procedural aspects
Review Of Adjudications:Procedural Aspects

  • Agency Authority Limited

    • Delegated From Legislature

    • Develop Rules Of Procedure

  • Courts Lack Authority To Substitute For Agency

  • Doctrines

    • Exhaustion Of Remedies

    • Primary Jurisdiction

  • Equal Access To Justice Act

Review of adjudications procedural aspects1
Review Of Adjudications:Procedural Aspects

The Doctrine of Exhaustion of Remedies


1. Allows an agency to fully develop and consider the facts of the case

2. Allows an agency to utilize its expertise

3. Allows an aggrieved party to obtain a remedy without judicial review

4. Protects agency processes from impairment by interruption

5. Allows agency to correct own mistakes

6. Conserves judicial time by avoiding piecemeal appeals

Review of adjudications procedural aspects2
Review Of Adjudications:Procedural Aspects

The Doctrine of Exhaustion of Remedies


1. Statute or rule is attacked as unconstitutional on its face

2. Multiple administrative remedies exist and one is exhausted

3. Agency cannot provide an adequate remedy

4. It is clearly useless to seek relief before the agency

5. No issues of fact exist

6. Agency expertise is not involved

7. Irreparable harm will result from pursuit of administrative remedies

8. Agency's jurisdiction is not authorized by statute

9. Limitation under §10(c) of APA when there is a final agency action.

Review of factual determinations
Review Of Factual Determinations

  • Court

    • Presumes Findings Of Fact Correct

    • Analyzes Agency Proceedings

  • Court Does Not

    • Reweigh Evidence

    • Make Independent Determination

    • Substitute Its View For Agency’s

Agency regulation criticisms
Agency Regulation Criticisms

  • Taxation

  • Cost Of Doing Business/Paperwork

  • Consumer Pays

    • Direct Cost

    • Indirect Cost

  • Inhibits Competition

  • Cost/Benefit Analysis