D.C. Insider: December 2023


In Washington, D.C., this month, the discussion is around another government shutdown averted, SEC developments, the FTC, and more. In this month’s ICR D.C. Insider, we share our insights and analysis about developments in Washington that could have an immediate and long-term impact on your business.

What’s Next In Washington


  • Supreme Court Appears to Favor Restrictions on SEC In-House Tribunals – The U.S. Supreme Court appears likely to strip the Securities and Exchange Commission (SEC) of its ability to use its own courts to seek fines from those accused of violating securities laws and regulations in a case that could threaten similar Executive Branch procedures that Congress authorized for consumer protection, workplace safety, among other areas. During oral arguments, the Court’s conservative justices were broadly sympathetic to arguments from a hedge fund founder accused of fraud, who said that the SEC’s practice of asking its in-house judges to impose monetary penalties on defendants violates the Constitution’s Seventh Amendment right to a jury trial.
  • Climate Change Disclosure Rule – There were a series of developments as the ultimate breadth of the SEC’s climate change rule continues to take shape:
    • Reuters reports that SEC officials told lobbyists and corporate executives that Scope 3 emissions – which are greenhouse gases from a company’s supply chain and the consumption of its products by customers – may be dropped from the final text.
    • Republican SEC Commissioner Mark Uyeda said the Commission should seriously consider scrapping its climate disclosure rule and starting over with a new proposal.
  • Stock Repurchase Rule on Hold – Following its November ruling that sent a rule that required companies to provide more information about stock repurchases back to the SEC to fix defects, the Commission was unable to make the changes in the time allotted to it by the court. The court – which is expected to vacate the rule – found that the rule’s adoption was arbitrary and capricious and that the Commission failed to conduct a proper analysis of the costs and benefits.
  • A Focus on Nondisclosure Agreements – The Commission is working to ensure nondisclosure language is not being used to deter whistleblowers, who are a key source for the SEC – which can (following a tip from a whistleblower) monitor a company’s events in real-time and police the market.
  • SEC, FASB Take Closer Look at Companies’ Statement of Cash Flows – U.S. regulators and standard setters are taking a closer look at cash-flow statements, with a focus on how companies determine whether errors made in the overlooked financial statement are material to investors, how such corporate disclosures may lag behind other financial statements in terms of usefulness for investors as well as the quality of the information that companies provide.



  • Franchise Rule Proposal Pushback – A bipartisan coalition of 15 senators came to the defense of the franchising industry as the sector awaits new regulations from the Federal Trade Commission (FTC). In a letter to FTC Chair Lina Khan, the lawmakers urged Khan to ensure that any new rules “benefit the franchise business model and support our constituents who utilize the franchise business model to open and grow their businesses.” The FTC concluded its public comment period over the summer, telling CNBC that it drew more than 5,500 comments.
  • FTC Warns Influencers About Inadequate Disclosures on Social Media – A dozen social media influencers and two trade associations received warnings about the lack of adequate disclosures in their Instagram and TikTok posts. As a practical matter, in promotional TikToks or Instagram Reels, the disclosure should be made audible in the video itself as well as visible in the text description. The rule applies to paid sponsorships and promotions in exchange for free products, and in cases of any business or family relationships.
  • Added Tools For Investigations of AI-Related Claims – By a 3-0 vote, the FTC approved a resolution authorizing it to use tools in nonpublic investigations involving products and services that use or claim to be produced using artificial intelligence (AI), or claim to detect its use. The result will streamline the FTC’s ability to issue Civil Investigative Demands (CIDs), which are a form of compulsory process similar to a subpoena.

Labor & NLRB

Additional Key Developments