The U.S. District Court for the District of Columbia denied the Federal Trade Commission’s motion to dismiss a lawsuit by the New York State Bar Association and the American Bar Association challenging the applicability of the Gramm-Leach-Bliley Act (“GLBA”) to lawyers in private practice and held that “it does not appear that Congress intended for the GLBA’s privacy provisions to apply to attorneys.” You can read the decision here. The court also had some harsh words for the FTC:
In addition, it also appears on the record now before the Court, that the FTC’s failure to provide sufficient reasoning to support its interpretation that attorneys are subject to the GLBA, raises concerns regarding whether the decision amounted to arbitrary and capricious agency action. Finally, even if the GLBA is applicable to attorneys engaged in the practice of law, it appears that the FTC failed to consider whether attorneys are entitled to a de minimis exemption under the GLBA, which if proven to be the case, would also amount to arbitrary and capricious agency action.