Government and Regulatory Litigation LITIGATION/CONTROVERSY

Drawing on years of experience both inside and outside of government, lawyers in WilmerHale’s Government and Regulatory Litigation Group handle a wide range of litigation involving the federal government and state and foreign governments as well as litigation under a variety of complex regulatory schemes. The group brings together the firm’s substantive regulatory expertise—in antitrust, aviation, communications, defense and national security, anti-discrimination law, education, energy, environmental law, financial institutions, government contracting, health care and pharmaceuticals, patent law, technology, transportation and international law, among others—and its familiarity with litigation involving the government and under regulatory regimes.

We have significant experience bringing pre-enforcement and other expedited challenges seeking to immediately enjoin or set aside laws, regulations, and agency decisions that pose imminent threats to our clients’ interests. We also frequently have been able to resolve potentially large-scale litigation at the motion to dismiss or summary judgment stage or to obtain advantageous early settlements. Our ability to find creative early solutions has been enhanced by our track record of successfully litigating matters through trial where necessary.

Our Lawyers

Our lawyers have served in senior government positions, including senior positions in the Department of Justice, the primary litigation arm of the United States. Lawyers affiliated with the Government and Regulatory Litigation Group include:

  • Two former Deputy Attorneys General of the United States (the second highest position in the Department of Justice)
  • A former Solicitor General of the United States and a former Assistant to the Solicitor General
  • A former Assistant Attorney General in charge of the Civil Division of the Department of Justice, the largest litigating division of the Justice Department
  •  A former Acting Assistant Attorney General and a former Deputy Assistant Attorney General in the Office of Legal Counsel
  • A former Assistant Attorney General for Office of Legal Policy
  • A former United States Attorney, Chief of Staff to the Secretary of Interior and Assistant Secretary of Interior for Fish and Wildlife and Parks
  • A former General Counsel for the Department of Defense and a former Deputy General Counsel for the Department of Defense responsible for litigation
  • A former Principal Deputy Associate Attorney General and Deputy Assistant Attorney General for the Federal Programs Branch of the Civil Division

Drawing on years of experience both inside and outside of government, lawyers in WilmerHale’s Government and Regulatory Litigation Group handle a wide range of litigation involving the federal government and state and foreign governments as well as litigation under a variety of complex regulatory schemes. The group brings together the firm’s substantive regulatory expertise—in antitrust, aviation, communications, defense and national security, anti-discrimination law, education, energy, environmental law, financial institutions, government contracting, health care and pharmaceuticals, patent law, technology, transportation and international law, among others—and its familiarity with litigation involving the government and under regulatory regimes.

We have significant experience bringing pre-enforcement and other expedited challenges seeking to immediately enjoin or set aside laws, regulations, and agency decisions that pose imminent threats to our clients’ interests. We also frequently have been able to resolve potentially large-scale litigation at the motion to dismiss or summary judgment stage or to obtain advantageous early settlements. Our ability to find creative early solutions has been enhanced by our track record of successfully litigating matters through trial where necessary.

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Ogden, David W.

David W. Ogden

Chair, Government and Regulatory Litigation Practice Group

+1 202 663 6440 (t)

david.ogden@wilmerhale.com

Government Litigation

We routinely handle litigation against, with or for the government in a variety of contexts, including:

  • Constitutional and preemption challenges to legislation
  • Challenges to agency action under the Administrative Procedure Act
  • Regulatory enforcement actions
  • False Claims Act litigation
  • Government contract litigation
  • International litigation involving the United States or foreign governmental institutions

A successful government litigation strategy must take into account legal doctrines applicable to litigation involving the government, including sovereign immunity, ripeness, mootness, standing, the availability of pre-enforcement relief, abstention, and deference. Our lawyers have expertise in the constitutional, administrative, and statutory law that applies uniquely to litigation with or involving governments.

Effective representation in government litigation also requires consideration of the government’s institutional interests and decision-making processes. These interests and processes often differ substantially from those of private litigants. Our experience allows us to take advantage of the opportunities presented by these distinct rules, constraints, operations, and motivations. By combining the group’s knowledge of the issues that arise in government litigation with the substantive expertise of the firm’s regulatory practices, we are well positioned to handle complex regulatory, administrative, or constitutional litigation involving governments.

Regulatory Litigation

A host of federal statutes—including, for example, the antitrust, anti-discrimination, environmental, and fraud and racketeering laws, as well as the False Claims Act—create rights of action for private parties seeking to enforce federal regulatory regimes. Civil litigation brought pursuant to these private rights of action, including class actions, often occurs in parallel with enforcement or potential enforcement by federal regulators or prosecutors or scrutiny from Congress, foreign governments and/or the press. A successful litigation strategy—whether offensive or defensive—must take account of opportunities and risks in all of these areas, building alliances where advantageous, finding ways to advance litigation objectives quickly or otherwise develop positive momentum, and developing creative solutions in a dynamic environment.

Our experience with the applicable regulatory programs and complex civil litigation, coupled with our experience handling criminal and civil government litigation and other high profile legal proceedings, allows us to advance our clients’ interests in litigation while maximizing their position in other venues.

Experience

Representative government and regulatory litigation matters handled by the group include the following:

  • Representation of companies in the pharmaceutical, telecommunications, office supplies, entertainment, defense, insurance, oil and gas, financial institutions and other industries in qui tam and government-initiated litigation under the False Claims Act.
  • Representation of a trade association in a successful patent preemption and dormant commerce clause challenge to District of Columbia legislation imposing price caps on patented prescription drugs.
  • Representation of a major telecommunications carrier in defending the constitutionality of the immunity provision of the FISA Amendments Act of 2008 in consolidated class actions alleging that carriers cooperated with alleged NSA counter-terrorism surveillance following the attacks of September 11.
  • Representation of a defense contractor in a high-stakes contract dispute involving provision of equipment to the U.S. military.
  • Representation of a major prescription drug wholesaler in an Administrative Procedure Act challenge to a Drug Enforcement Administration order suspending the registration of one of the company’s distribution facilities.
  • Representation of a U.S. petrochemical company in successful litigation to declare unenforceable foreign judgments totaling more than $500 million.
  • Representation of a U.S. energy company in litigation in federal court challenging the seizure of their business by a foreign government under the expropriation exception to the Foreign Sovereign Immunities Act.
  • Representation of a major aerospace company in a successful Atomic Energy Act preemption, intergovernmental immunity, and constitutional challenge to a California statute that singled out one site in the state for uniquely onerous environmental cleanup regulations.
  • Defense of numerous significant international cartel cases involving a variety of industries, including automotive components, air cargo and LCD panels.
  • Representation of state governmental entities and individuals in defending the constitutionality of state and federal programs that support research and promotion of agricultural commodities.
  • Representation of major aerospace company in separate government contract disputes pending in the Court of Federal Claims and Armed Services Board of Contract Appeals.

Publications & News

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November 18, 2014

WilmerHale Partner David Ogden Discusses Release of "Fair Disclosure" Study

David W. Ogden participated in the panel "Evidence Disclosure in Criminal Cases" during the National Association of Criminal Defense Lawyers' official release of its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure In Criminal Cases.

November 17, 2014

CFPB Releases Long-Awaited Proposal on Prepaid Account Products

On November 13, 2014, the Consumer Financial Protection Bureau (“CFPB”) issued a proposed rule to extend certain federal consumer protections to the prepaid market.

November 17, 2014

Proposed Prepaid Rule Unlikely To Stem Growth

An article by Franca Harris Gutierrez, Bradford Hardin and Maury Riggan, published by Law360 on November 17, 2014.

November 4, 2014

FINRA to Intensify Scrutiny of Cybersecurity Practices at Brokerage Firms

Reuters recently reported that the Financial Industry Regulatory Authority (FINRA) "plans to intensify its scrutiny of cybersecurity practices at brokerage firms in 2015 and is hiring technology savvy examiners to help boost its efforts."

October 24, 2014

New Restrictions On Int'l Trade In Genetic Resources

An article by WilmerHale Partner Bruce Manheim, published in the October 24, 2013 edition of Law360.

October 20, 2014

The Uncertain Utility Of A CFPB No-Action Letter

An article by Eric J. Mogilnicki and Eamonn K. Moran, appearing in the October 20, 2014, edition of Law360’s Consumer Protections and Public Policy sections.

October 18, 2014

A National Journal Profile on Partner Debo Adegbile

Debo Adegbile, who joined WilmerHale from the Senate Judiciary Committee and prior to that was acting president and director-counsel at the NAACP Legal Defense Fund, Inc., was profiled by National Journal on October 18, 2014.

September 30, 2014

Cyber Crime And Trade Secret Protection: Strengthening Defenses

An article written by Jonathan Cedarbaum and Jane Love published in the New York Law Journal’s White-Collar Crime Special Section on September 29, 2014.

September 11, 2014

Prominent Litigator Debo P. Adegbile Joins WilmerHale

Wilmer Cutler Pickering Hale and Dorr LLP is pleased to announce that Debo P. Adegbile has joined the firm as a partner. Previously senior counsel to the Senate Judiciary Committee and acting president and director-counsel at the NAACP Legal Defense Fund, Inc. (LDF), Mr. Adegbile will focus his practice in WilmerHale's Litigation/Controversy Department and will be based in the New York office.

September 4, 2014

Provisional Rules on Enterprise Information Disclosure and Their Implications

China's State Council approved the Provisional Rules on Enterprise Information Disclosure (企业信息公示暂行条例) (the Disclosure Rules) on July 23, 2014, which take effect on October 1, 2014.