On November 13, 2015, the Federal Trade Commission's Chief Administrative Law Judge, D. Michael Chappell, issued a 92 page opinion in the closely-watched LabMD data security case. In his opinion, the ALJ comprehensively disagreed with the FTC's factual claims and legal theories. Applying Section 5, he ruled that Complaint Counsel failed to prove a probability, or "likelihood," of harm, and that "Fundamental fairness" means Section 5(n) “requires proof of more than...hypothetical or theoretical harm...” Complaint Counsel has appealed and, according to statistics published by former Commissioner Joshua Wright, the Commission is likely to reverse. Reed D. Rubinstein, counsel to Cause of Action and a Partner at Dinsmore & Shohl, LLP, spoke about the case and answered questions about its implications for data security regulation, Section 5 jurisprudence, and combating administrative agency overreach.
- Reed D. Rubinstein, Of Counsel, Cause of Action, Partner, Dinsmore & Shohl, LLP