Philadelphia associate Zoë Wilhelm was quoted in an article titled, “LabMD May Struggle at 11th Circuit, Positioning Itself for Supreme Court, Lawyers Say,” in Warren’s Washington Internet Daily.

The article discusses LabMD’s attempt to challenge the FTC's authority to regulate data security in the federal courts. Despite the fact that an FTC administrative action is still pending (and is stalled due to a congressional investigation), LabMD argues that the administrative law judge's motion to dismiss ruling that the FTC Act allows the FTC to regulate companies' cybersecurity is a final ruling that is justiciable in federal court. The Northern District of Georgia disagreed, and LabMD now appeals to the Eleventh Circuit.

Zoë is dubious that the 11th Circuit will buy it, saying that “it’s really an uphill battle.”  She contrasted the obstacles in LabMD's appeal to a similar Third Circuit case challenging the FTC's authority, FTC v. Wyndham Worldwide Corp.  Because, in Wyndham's case, the question was certified for appeal by the District of New Jersey and there is no pending administrative action, Zoë says, “There aren't the same questions about whether the federal courts can hear the case.  Because of that the merits of the case can actually be considered.”

To read the entire article, click here.

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