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 2, 2015

Jamie Gorelick Honored as a Regulatory & Compliance Trailblazer

Partner Jamie Gorelick has been selected as one of 45 lawyers on The National Law Journal's list of Regulatory & Compliance Trailblazers. Those recognized have "devised new strategies and decisively altered the playing field."

June 10, 2015

Higher Education General Counsel Mark Rotenberg to Join WilmerHale

Mark B. Rotenberg, vice president and general counsel of Johns Hopkins University, will join WilmerHale as special counsel in the law firm’s Washington DC office.

June 1, 2015

WilmerHale Partners Recognized as Outstanding Women Lawyers by The National Law Journal

WilmerHale congratulates Partners Susan Murley, Jamie Gorelick and Sharon Cohen Levin for being named to The National Law Journal’s (NLJ) inaugural list of Outstanding Women Lawyers.

May 26, 2015

Supreme Court Strengthens False Claims Act’s Statute of Limitations, Narrows First-to-File Bar

The U.S. Supreme Court today resolved two important questions under the False Claims Act, holding that (1) the Wartime Suspension of Limitations Act (WSLA), 18 U.S.C. § 3287, applies only to criminal cases, and (2) the FCA’s first-to-file bar, 31 U.S.C. § 3730(b)(5), ceases to apply once the earlier-filed action that might have created the bar has been dismissed.

May 22, 2015

Federal Trade Commission Signals Intensified Focus on Security-By-Design and the Internet of Things With New Start with Security Initiative for Small and Medium-Sized Businesses

While the FTC's initial focus in the Start with Security initiative has been on providing guidance to small and medium-sized businesses, it also serves to put companies of all sizes on notice that the FTC will be increasingly targeting security practices relating to emerging technologies, apps, connected household devices and the "Internet of Things."

May 19, 2015

WilmerHale Practices, Lawyers Ranked Among Nation’s Best by Chambers USA

Chambers USA: America's Leading Lawyers for Business announced its final rankings for the 2015 edition, with WilmerHale ranking among the nation's best in 46 practice area categories. Chambers also ranked 86 WilmerHale attorneys as leaders in their respective fields.

May 1, 2015

Restrictions Governing International Trade in Genetic Resources Enter into Force

An article by Bruce Manheim, published in Bio-Science Law Review, Case Comments: Vol. 14, Issue 4.

April 28, 2015

SEC Applies Whistleblower Interference Rule to Corporate Confidentiality Requirement

On April 1, the US Securities and Exchange Commission issued—in a settled administrative proceeding—a cease-and-desist order in In the Matter of KBR, Inc., directing that the respondent cease violating Commission Rule 21F-17(a).

April 22, 2015

Jamie Gorelick Honored with Award and Delivers Keynote at Oklahoma City Bombing Anniversary Luncheon

WilmerHale Partner and former US Deputy Attorney General Jamie Gorelick, who assembled and oversaw the prosecution team in the 1995 bombing in Oklahoma City, delivered the keynote speech and was honored at the 2015 Reflections of Hope Award Luncheon on April 20 in Oklahoma City.

April 16, 2015

Global Investigations Review Honors Kimberly Parker and Elly Proudlock as Top Women in Investigations

Global Investigations Review (GIR) named WilmerHale Partner Kimberly Parker and Counsel Elly Proudlock among the top Women in Investigations, a list meant to honor remarkable women in the field.