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Jack Smith, seen in 2010 when he was the Justice Department's chief of the Public Integrity Section. Attorney General Merrick Garland named Smith a special counsel on Friday to oversee DOJ's criminal investigations involving former President Donald Trump. Charles Dharapak/AP hide caption


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Attorney General Merrick Garland appointed the Justice Department's former public integrity chief Jack Smith on Friday to oversee the Justice Department's criminal investigations involving former President Donald Trump.

Smith will oversee the department's investigations into the possible mishandling of classified documents and presidential records at Trump's Mar-A-Lago estate, as well as key aspects of the department's Jan. 6 investigation.

Today, the Department of Justice and the Federal Trade Commission largely oversee digital platforms. Despite their admirable work to enforce existing antitrust and consumer protection laws, they lack the expert staff, resources, and tech-oriented culture necessary for robust and sustained oversight. They also have jurisdiction across the entire economy, raising questions about their capacity to provide focused oversight. Moreover, both bodies are limited by existing statutes to react to case-specific challenges raised by digital platforms, when proactive, long-term rules for the sector are required. Finally, although antitrust and consumer protection laws are essential, they do not capture the broader range of concerns implicated by digital platforms, from disinformation to addiction to the evisceration of local journalism.

States considering implementing or expanding notice requirements should compel notice from a wide array of health care providers and a broader range of transaction types to ensure that they have the information they need to oversee health care markets.

As health care markets become increasingly consolidated, state regulators should be equipped with tools to protect competition and consumers from the anticompetitive effects of consolidating transactions. To do this, state regulators and enforcers need broad pretransaction notice; sufficient time to review transactions using substantive review criteria; the ability to administratively approve, conditionally approve, or block transactions; and the means to oversee conditionally approved transactions. Although the federal antitrust enforcers at the FTC and DOJ play an essential role in overseeing large transactions, states also have an important role in addressing the smaller and stealthier forms of consolidation happening in markets across the country.

As investor attention on ESG risks continues to intensify, particularly in the face of escalating climate risk, investors and other stakeholders want to ensure that a company has robust processes in place to address them. Decision-useful disclosure helps investors and other stakeholders understand how a board oversees ESG risks and should include the following:

ConclusionESG issues pose a variety of risks being felt by companies today. These risks manifest across industry sectors, and can pose systemic risks that require thoughtful attention by companies. Boards need to be able to understand how to oversee ESG risks through their overall oversight of the risk identification, prioritization and mitigation processes. Boards also need to understand how to adequately structure and disclose their ESG oversight to investors and other stakeholders. As ESG risks will only continue to disrupt the market, boards that examine and oversee these risks will lead their companies to long-term success.

While these considerations do not mean that a board should fully delegate its oversight responsibilities with respect to ESG to board committees, it may be advisable for boards of certain public companies to consider whether certain ESG matters should be overseen at the board committee level (either with dual board oversight responsibility or not).

Assuming that a public company has determined that certain ESG responsibilities should be overseen at the board committee level, a related question is whether all ESG matters should be overseen by one board committee or whether multiple board committees should oversee ESG matters. Practice differs in this regard, but given the breadth and diversity of topics within the scope of ESG, many public companies have determined that it is advisable to allocate ESG oversight responsibilities to multiple board committees, taking into account the breadth and diversity of topics within the scope of ESG. For example, a 2022 Exequity survey of S&P 100 companies indicated that, among the companies which disclosed overseeing ESG matters at a board committee level, 49% of surveyed companies oversaw ESG matters through two board committees and 17% of surveyed companies oversaw ESG matters through three or more board committees (with the remaining companies overseeing ESG matters through one board committee).

In sum, many factors influence the determination of which ESG topics should be overseen by particular board committees (and, possibly, whether a new board committee should be created to oversee certain ESG matters). However, two critical factors in most cases will be: (1) the amount of additional time that a board committee has to take on a new oversight responsibility; and (2) the existing subject matter responsibilities of a board committee and the expertise and experience of the board members currently serving on such board committee.

In addition to assessing board oversight of ESG considerations from a governance perspective and proxy statement disclosure considerations in connection therewith, public companies should ensure that the disclosures in their corporate governance documents (board committee charters, corporate governance guidelines, etc.) are consistent with board and board committee oversight of ESG risk as a matter of practice, and that such corporate governance document disclosures are up-to-date (and neither overinclusive nor underinclusive). In particular, given the rapid evolution of board oversight processes with respect to ESG matters, it is not unusual for board committee charters of public companies to not have been fully updated to reflect ESG matters that a particular board committee is now overseeing.

But the legislation may not stand much of a chance with a Republican House, where the Financial Services Committee, which oversees banking policy, is now chaired by Rep. Patrick McHenry, R-N.C., and staffed by former lobbyists.

The committee also recently hired Will Anderson, a former lobbyist for the Business Roundtable, a trade group that represents Wells Fargo & Co., Goldman Sachs Group Inc., Bank of America Corp., and other large financial corporations. Anderson will serve as the staff director for the subcommittee on capital markets, which oversees the Securities and Exchange Commission and other regulatory agencies.

For example, Northrop Grumman, the defense giant, paid out bonuses to executives who went on to work as congressional staff. One former Northrop Grumman lobbyist received up to $450,000 in bonus and incentive pay as he left the firm to work on the committee that oversees Pentagon policy. Former Northrop Grumman executives worked to advocate for higher military spending and for lawmakers who specifically encouraged spending on Northrop Grumman-built weapons systems, including the RQ-4 Global Hawk drone.

As Truthout reported, several former fossil fuel lobbyists have been hired for key committees overseeing energy and land use policy. Rep. Bruce Westerman, R-Ark., who controls the gavel of the Natural Resources Committee, hired a former lobbyist for Taylor Energy, the Louisiana firm responsible for an oil spill in the Gulf of Mexico. Rep. Pete Stauber, R-Minn., also a member of the same committee, hired Shawn Rusterholz, a former lobbyist for the American Petroleum Institute, a trade group for the oil majors such as Exxon Mobil Corp. and Chevron Corp.

With Cuellar in line to be the top Democrat in the next Congress on the House Homeland Security Appropriations Subcommittee, which oversees the Immigration and Customs Enforcement and Customs and Border Protection budgets, some Democrats and advocacy groups are growing concerned.

The bipartisan vote by the Senate Environment and Public Works Committee is significant, as Republicans have chafed at how the FHWA has overseen the rollout of the $1.2 trillion infrastructure law that Congress passed a year ago.

Bhatt, the former head of state transportation agencies in Colorado and Delaware, would become the first permanent head of the FHWA under Biden. Stephanie Pollack, the former head of the Massachusetts transportation department, currently oversees the federal agency as its deputy administrator.

Transportation Secretary Pete Buttigieg, who oversees many agencies including the FHWA, has reassured state officials that FHWA would follow existing law, Bhatt said. In fact, Bhatt noted, the fact that federal officials signed off on a Maryland proposal to expand the Beltway around Washington, D.C., indicated that FHWA would not block road expansion projects. 041b061a72


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