American Bar Association v. Federal Trade Commission

430 F.3d 457 (D.C. Cir. 2005)


Congress enacted the Gramm-Leach-Bliley Financial Modernization Act. The Act declared that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information. The privacy provisions empowered the Federal Trade Commission (FTC) to 'prescribe . . . such regulations as may be necessary to carry out the purposes of this subchapter with respect to the financial institutions subject to their jurisdiction under section 6805 of this title.' A 'financial institution' was defined as 'any institution the business of which is engaging in financial activities as described in section 1843(k) of Title 12.' The Bank Holding Company Act (BHCA) in section 1843, limits the ability of the bank holding companies regulated under that statutory scheme to hold interests in nonbanking organizations. That section identifies institutions engaged in nonbanking activities that are financial in nature, such that bank holding companies may retain ownership interests in institutions engaged in their pursuit. The section of the BHCA defining those activities incorporates by reference Regulation Y, which offers an extensive list of examples of such 'financial activities' so closely related to banking as to be permissible. These included tax advice and the closing of real estate transactions. Nothing on the face of the statute nor the regulations describe the statutory or regulatory scheme as governing the practice of law. Ps looked at the breadth of D's regulation, along with statements to or by news media and made inquiry of D as to whether the privacy provisions of the GLBA and the regulations made pursuant thereto governed attorneys engaged in the practice of law. D rejected Ps request for exemption and made clear that that Act itself states that entities engaged in 'financial activities' are subject to the Act. P sued seeking a declaratory judgment. Summary judgment was granted. The court held that the Commission's attempt to regulate attorneys under the privacy provisions of the GLBA was not only inconsistent with the statute but also arbitrary and capricious in violation of the Administrative Procedure Act. D appealed.