June 11, 2010 – At its June 25, 2010 meeting, the State Bar of Wisconsin’s Board of Governors may consider a request by immediate Past President Diane Diel to join a proposed non-party amicus curiae brief in the name of the State Bar of Wisconsin in connection with an appeal to the United States Court of Appeals for the District of Columbia in the matter of American Bar Association v. Federal Trade Commission, No. 10-5057.

The ABA filed suit in the U.S. District Court seeking to bar the Federal Trade Commission (FTC) from applying its Red Flags Rule, under the Fair and Accurate Credit Transactions Act (FACTA).

The FTC has interpreted the Red Flags Rule as applying to lawyers and other professional “creditors.” The ABA challenged the FTC action before the U.S. Court of Appeals for the District of Columbia, arguing that the FTC exceeded the powers delegated to it by Congress and misinterprets the rule to include practicing attorneys in the rule’s definition of “creditor.”

Judge Reggie B. Walton issued a memorandum opinion and order on December 1, 2009, granting relief to the petitioners, stating the FTC’s application of the Red Flags Rule to attorneys was “both plainly erroneous and inconsistent with the purpose underlying the enactment of the FACT Act.” The Federal Trade Commission filed an appeal to that decision in February.

The New York State Bar Association (NYSBA) has filed a notice of consent by the parties for the NYSBA to file an amicus brief in connection with the appeal.

Several entities, including the New York County Lawyers’ Association, the Association of the Bar of the City of New York, the Florida Bar, the Iowa State Bar Association and the Kansas Bar Association, have asked that their names be added to the brief. An outline of the arguments to be presented is available for review here.

State Bar members are invited to express opinions about whether the State Bar should join other state and local associations in co-authoring an amicus brief. Member feedback received by June 18, 2010 will be considered by the Board of Governors at its June 25 meeting.

To post a comment, click here.

For more information on the Red Flags Rule see: ABA Resources on Red Flags Rule

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