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 Assistant Attorney General and a former Acting Assistant Attorney General in charge of the Office of Legal Counsel, the principal legal adviser in the Executive Branch on issues of constitutional, statutory and administrative law, 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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Contacts

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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

Moss, Randolph D.

Randolph D. Moss

Chair, Regulatory and Government Affairs Department

+1 202 663 6640 (t)

randolph.moss@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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January 25, 2013

DC Circuit Invalidates Obama Recess Appointments

January 23, 2013

Recent Developments Relating to Patent Term Adjustments

January 4, 2013

WilmerHale Announces the Elevation of Partners and Special Counsel

We are pleased to announce the elevation of our new partners and special counsel in 2013.

January 2, 2013

The False Claims Act: 2012 Year-In-Review

The upward trends in False Claims Act (FCA) enforcement that we described in our 2011 Year-In-Review continued in 2012. In the fiscal year that ended on September 30, 2012, the U.S. Department of Justice (DOJ) secured $4.9 billion in FCA settlements and civil judgments, beating the previous record by more than $1.7 billion. Federal FCA recoveries since January 2009 add up to $13.3 billion, which is the largest four-year total in DOJ history. Our full review is available in PDF format.

January 1, 2013

WilmerHale Attorney Selected for Alumni Award from University of Texas

WilmerHale Senior Associate Madhu Chugh, has been selected to receive the 2013 Outstanding Young Texas Ex Award from her alma mater, the University of Texas. Chugh is one of four University of Texas alumni who have been selected by the Texas Exes to receive the award for 2013.

December 27, 2012

New FTC Rules Tighten Regulation Under the Children's Online Privacy Protection Act

December 4, 2012

Second Circuit Invalidates Misbranding Conspiracy Conviction on First Amendment Grounds

December 4, 2012

Whistleblower Protection Enhancement Act of 2012 Signed into Law

On November 27, 2012, President Obama signed S. 743, the Whistleblower Protection Enhancement Act of 2012, into law. The Act strengthens existing protections for federal workers who disclose evidence of fraud, abuse, or waste they have encountered in the course of their employment. The new law clarifies the scope of protected disclosures, expands the class of persons protected, and corrects perceived unfairness in certain aspects of the process of seeking relief for violations.

October 29, 2012

Partner David Ogden Participates in Annual Legal Reform Summit

October 18, 2012

CFTC Heightened Enforcement Activity

On October 5, 2012, the Commodity Futures Trading Commission (Commission or CFTC) announced fiscal year 2012 enforcement statistics and case highlights, and identified for practitioners and market participants the Division of Enforcement’s (Division) likely 2013 priorities.1 In addition to fraud-based actions, the announcement brought attention to cases involving allegations of manipulation, false reporting, wash trades, exceeding position limits, and deficient customer fund safeguards and supervision obligations.