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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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

Nichols, Carl J.

Carl J. Nichols

Vice Chair, Government and Regulatory Litigation Practice Group

+1 202 663 6226 (t)

carl.nichols@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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July 15, 2016

Life and Annuity Series: Class Certified in an ERISA “Unreasonable Compensation” Case

The Colorado federal court concluded last summer, in Teets v. Great-West Life & Ann. Ins. Co., that an insurer could be subject to ERISA liability for receiving unreasonable compensation in connection with a stable value fund, and that the fund was not exempt from ERISA as a “guaranteed benefit policy.”

July 13, 2016

Civil Fines Jump Across Agencies Under Inflation Adjustment Act

Civil fines across federal agencies have recently been increased dramatically under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) (Sec. 701 of Public Law 114-74), with some more than doubling. Companies violating the Hart-Scott-Rodino (HSR) Improvements Act, the Securities and Exchange Act, or the Occupational Safety and Health Act (OSHA), among others, could soon face civil monetary penalties that are up to 150% higher than the existing levels. According to the Congressional Budget Office, the 2015 Act would increase the federal government's revenue by $1.3 billion over the next ten years. 

June 16, 2016

Supreme Court Upholds Implied Certification Liability, While Emphasizing Materiality Requirement

In Universal Health Services v. United States ex rel. Escobar, the Supreme Court unanimously upheld the “implied certification” theory of liability under the False Claims Act (FCA), while emphasizing that only material misrepresentations are actionable.

June 13, 2016

The Global Implications of the EU's New Civil Market Abuse Regime

On 3 July 2016 the EU Market Abuse Regulations will come into force, replacing the previous civil market abuse regime as set out in the Market Abuse Directive. Given its extra-territorial effect, the changes brought in by MAR are likely to have implications for market participants located outside the EU. [Also published on the WilmerHale W.I.R.E. UK blog.]

June 9, 2016

David Ogden Calls for DOJ to Return to a Punishment-Fits-the-Crime Settlement Approach

David Ogden warned in a recent and important speech that the Department of Justice's current tendency to use its vast power to extract disproportionate monetary penalties from many companies that fall under its prosecutorial glare is actually counterproductive.

June 8, 2016

Stephen Preston Receives National Security Agency Intelligence Under Law Award

The Intelligence Under Law Award is presented annually in recognition of an individual's “commitment to the conduct of intelligence activities under the rule of law.”

May 27, 2016

WilmerHale Lawyers and Practices Recognized in 2016 Edition of Chambers USA

Chambers USA: America's Leading Lawyers for Business announced its final rankings for the 2016 edition, with WilmerHale ranking among the nation's best in 47 practice area categories. Chambers also ranked 82 WilmerHale lawyers as leaders in their respective fields.

May 24, 2016

Kimberly Parker Honored by the American College of Obstetricians and Gynecologists for Distinguished Service

For more than 15 years, Partner Kimberly Parker has led teams of WilmerHale lawyers representing the ACOG on a pro bono basis.

May 20, 2016

The Future of CFPB Small Business Lending Regulation

In this article published by Law360, Michael Gordon and Franca Harris Gutierrez highlight the role played by the Consumer Financial Protection Bureau in regulating small business lending.

May 16, 2016

Congress Creates Federal Right of Action for Trade Secret Misappropriation

On May 11, President Obama signed into law the Defend Trade Secrets Act of 2016, which enables companies to go to federal court to sue for misappropriation of trade secrets.