As the Department of Justice seeks to hold Walmart accountable for its role in our country’s opioid crisis, Walmart and its allies are attempting to undermine the government’s effort with a retaliatory lawsuit that makes a faulty policy argument and is wrong on the law. Walmart filed suit against DOJ to preempt the government’s attempt to hold the corporation accountable for its role in the opioid crisis. After a district court dismissed its lawsuit, Walmart has now filed an appeal asking—among other things—the court to rule on the lawfulness of informal guidance given by individual government actors, including statements made during settlement discussions.

Their argument, supported by amicus briefs from conservative interests, suggests that alleged lawbreakers can run into federal court when their regulators say how they interpret the laws they enforce. In reality, Walmart’s efforts to paint this long-standing agency practice as covert government rulemaking and a threat to liberty are long on rhetoric, but glaringly short on specifics. Far from coercing or burdening regulated entities, informal guidance provides an invaluable service to businesses and other members of the public who seek to understand how the government intends to enforce the law.

When agencies explain how they interpret the law in informal guidance, they help make regulation more consistent, transparent, and efficient for government and industry alike. For example, the National Highway Traffic Safety Administration has issued thousands of “letters of interpretation” to better assist entrepreneurs, automobile manufacturers, car dealers, individual consumers, and others in understanding complex and vital public safety regulations surrounding cars, school buses, bicycles, and more. If Walmart and amici’s position were accepted, this vital public service would be in jeopardy, as NHTSA would have to worry about a preemptive lawsuit any time somebody that NHTSA believed might have violated the law disagreed with its interpretation.

We filed an amicus brief to provide our administrative law expertise to the court and urge it to affirm the decision of the District Court and reject Walmart’s legal challenge. As our brief details, “The federal courts have always been careful not to discourage such guidance, and doing so here would make regulation less consistent, transparent, and efficient for government and industry alike.” The amicus brief was filed in Walmart, Inc. v. Department of Justice in the U.S. Court of Appeals for the Fifth Circuit on July 30, 2021.

Jeffrey Dubner

Managing Senior Counsel

Litigating challenges to unlawful actions, abuses of power, and threats to democracy on behalf of those who are harmed.

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