Administrative Law and Regulatory Practice

Overview

Government regulation has a profound impact on companies’ business operations and is a crucial factor in corporate strategic planning. Regulatory and enforcement actions by countless U.S. federal and state agencies can impose significant costs, foreclose promising opportunities, and at times threaten a company’s vitality or even an entire industry.

The American Lawyer named Gibson Dunn a Finalist in its 2022 Litigation Department of the Year competition, noting that “when news breaks and the pressure rises, clients call Gibson Dunn’s litigators to regain control.” This award follows our unprecedented four wins in this biennial competition. In recognition of the importance of the administrative law and regulatory practice area and our firm’s capabilities, Gibson Dunn was also named a finalist for the White Collar/Regulatory Department of the Year. The firm was the 2016 White Collar/Regulatory winner, when The American Lawyer noted that “[c]lients routinely describe lawyers at Gibson, Dunn & Crutcher in superlatives,” such as “‘[s]trategic thinkers,’ ‘creative,’ ‘tenacious’ and ‘responsive.’” The publication called our appellate work in these areas “exceptional” and “involving areas where there was little law on the books.”

The correct response to troubling government regulatory actions will vary. Sometimes a court challenge is necessary. Other times, the best approach involves further proceedings before the relevant agency or even with Congress. In either case, a thorough understanding of the principles governing agency conduct is essential. Gibson Dunn’s Administrative Law and Regulatory Practice is well-versed in these principles and has an exceptional capacity to represent clients in this area. The group’s lawyers include many with high-level government experience and prior service in top legal, policy and enforcement positions at federal agencies. Our cross-disciplinary teams work with top subject matter practitioners across the firm, including those from our environmental, labor and employment, and securities regulation practice groups.

As needed, they also work closely with our Appellate and Constitutional Law practice, widely recognized to be among the very best in the United States. And when an agency’s actions warrant scrutiny by the U.S. Congress, our Public Policy lawyers provide sophisticated capabilities.

Particular Proceedings

We work with companies and trade associations throughout the agency rulemaking process – from developing the fundamental strategy, to writing comments and presenting other evidence and argument, to laying the groundwork for ultimate judicial review of final agency rules. We regularly represent clients in formal and informal enforcement actions before administrative law judges, commissions, and in federal and state court. In these and countless other regulatory matters, Gibson Dunn’s deep familiarity with the administrative law process, and the capabilities of our Litigation department, are highly effective.

Successfully challenged CFTC rulemakings associated with the agency’s controversial “Cross-Border Rule.” The suit, on behalf of three major financial industry trade associations, challenged the CFTC’s attempt to regulate persons and activities outside the United States who participate in the “swaps” market. Building off of Gibson Dunn’s prior victories in novel challenges to SEC rulemakings, the U.S. District Court for the District of Columbia agreed with Gibson Dunn’s arguments that the CFTC arbitrarily and capriciously failed to conduct the required cost-benefit analyses with respect to 10 rulemakings, remanding them back to the agency for more careful consideration.
Successfully challenged the FCC’s “net neutrality” rules on behalf of Verizon. The D. C. Circuit vacated the no-blocking and non-discrimination rules because they subjected broadband providers to common carrier treatment in violation of the Communications Act. The FCC decided not appeal the decision.
Convinced the D.C. Circuit to vacate a ruling from the FCC ordering Comcast to carry the Tennis Channel to the same degree it carried other sports channels (such as the Golf Channel) in which it had an ownership interest. The FCC ruling finding Comcast’s different treatment of the Tennis Channel to be intentional discrimination was a first-of-its-kind move by the agency to regulate the content that cable companies must provide to viewers.
Obtained a groundbreaking decision from the D.C. Circuit striking down a statute that grants Amtrak and the Federal Railroad Administration co-equal rulemaking authority, as an unconstitutional delegation of legislative authority. The case was brought on behalf of a freight railroads trade association dissatisfied with unrealistic performance metric promulgated pursuant to the statute.
Successfully challenged the SEC’s extractive resources rule on behalf of the American Petroleum Institute, the Chamber of Commerce of the United States of America, the Independent Petroleum Association of America, and the National Foreign Trade Council. The U.S. District Court for the District of Columbia vacated the rule, which implements Section 1504 of the Dodd-Frank Act and would have compelled companies to publicly report payments to foreign governments for oil, gas, and mineral development rights. The SEC had estimated that the rule could cost U.S. companies as much as $1.4 billion in compliance costs, and billions more due to trade secrets disclosure and lost business opportunities. The lawsuit challenged the statute and rule as impermissibly compelling speech under the First Amendment to the U.S. Constitution, and the rule as arbitrary and capricious under the U.S. Administrative Procedure Act.
Represented two leading U.S. business associations in a successful challenge to a controversial SEC rule regarding “proxy access.”
Successfully challenged a number of regulations adopted by the Department of Education on behalf of the Association of Private Sector Colleges and Universities.
Prevailed in a challenge to an SEC rule regulating the $100 billion Fixed Indexed Annuities industry.
Succeeded in obtaining an order directing the EPA to disclose soil and groundwater models that had been withheld under various FOIA exemptions. The decision represented an important precedent defining when the United States waives its protection under FOIA Exemption 5 and the scope of Exemption 7(A)’s law enforcement provision.
Successfully represented Comcast in a landmark case in which the D.C. Circuit abolished FCC limits on cable market share. In 2001, the D.C. Circuit threw out on First Amendment grounds an FCC rule that barred cable operators from controlling more than 30 percent of the U.S. market, but, in 2007, the FCC reestablished the 30 percent rule. Comcast argued that the FCC’s calculations were based on pre-2001 data that ignored satellite television’s increasing market share, and the court agreed.

Played a principal role in opposing the OSHA “ergonomics” rule that was invalidated by Congress in the first-ever use of the Congressional Review Act. On behalf of the National Association of Manufacturers, National Coalition on Ergonomics, and more than a hundred other trade associations and corporations, Gibson Dunn filed thousands of pages of material in the “repetitive motion injury” rulemaking and examined scores of witnesses during months of public hearings. Once the rule was finalized, we led the industry’s court challenge to the rule and assisted with legislative strategy, including testifying before Congress on use of the Congressional Review Act.
Represented several leading accounting firms in connection with a major SEC rulemaking intended to dramatically restrict the services that accounting firms can provide to clients they audit. Implementing a multi-pronged approach that involved participation in the notice-and-comment process, positioning for potential litigation over the rule and aggressive pursuit of a legislative and public relations strategy, Gibson Dunn was able to persuade the SEC to narrow its proposal significantly, to the point that the client group was able to endorse the rulemaking.
Representing clients in numerous other significant rulemakings before the SEC, including the “proxy access” rulemaking, and at the CFTC, SEC and the Federal Reserve Board in rulemaking proceedings arising out of the Dodd-Frank Act.
Representing Verizon in the FCC’s widely publicized Net Neutrality rulemaking on remand from the successful challenge to an earlier rulemaking in the D.C. Circuit.
Advising clients in Department of Transportation proceedings concerning safety-oriented rulemakings, persuading the agency to scale back aspects of those proposed rules that were unnecessarily detrimental to business operations.
Involved in some capacity, through our energy lawyers, in every major rulemaking proceeding related to formation of a Regional Transmission Organization (RTO) in the United States, including FERC Order No. 890.
Represented Global Automakers (formerly the Association of International Automakers) in a variety of rulemakings, including filing comments to the EPA in opposition to the State of California’s request for a preemption waiver under Section 209(b) of the Clean Air Act for its motor vehicle greenhouse gas regulations. Gibson Dunn subsequently represented Global Automakers in multiple challenges to state regulations limiting greenhouse gas emissions from motor vehicles. Litigation involved appeals to the Second and Ninth Circuits, as well as the federal district courts in California, Rhode Island and Vermont.

Administrative Law and Regulatory Practice

LEADERS

Stuart F. Delery

Eugene Scalia

Helgi C. Walker

Overview

EXPERIENCE & RECENT REPRESENTATIONS

RECENT PUBLICATIONS

The Corporate Transparency Act Declared Unconstitutional: What It Means for You

SEC Adopts Sweeping New Climate Disclosure Requirements for Public Companies

Former White House Counsel Stuart Delery Rejoins Gibson Dunn in Washington, D.C.

Department of Labor Releases Final Rule Revising Its Interpretation of Who Qualifies as an Independent Contractor Under the FLSA

Department of Labor Initiates Rulemaking to Increase Compensation Thresholds for Minimum Wage and Overtime Exemptions

Federal Banking Agencies Issue Basel III Endgame Package of Reforms

Supreme Court Holds Biden Administration’s Mass Student Loan-Cancellation Program Unlawful

Akiva Shapiro Receives Pursuit of Justice Award

President Biden Issues Executive Order Making Important Changes to How Agencies Weigh the Costs and Benefits of Regulatory Actions

FSOC Proposes Overhauling Its Standards for Designating Nonbank Companies as Systemically Important

Supreme Court Holds That Federal District Courts Have Jurisdiction To Hear Structural Challenges To FTC And SEC

FTC’s Latest Proposed Rulemaking Would Impose Significant New Requirements and Risks on Sellers Using Negative Option Offers

Gas Stoves: Developing Regulatory and Litigation Actions

In Fair Labor Standards Act Case, Supreme Court Holds That Employees Paid A Daily Rate Are Not Compensated On A “Salary Basis”

Webcast: Article 78 Challenges to Government Action in New York: Strategic Considerations and Pitfalls

New INFORM Consumers Act Imposes Seller Diligence and Disclosure Requirements for Online Marketplaces

FTC Proposes Rule to Ban Non-Compete Clauses

Seven Gibson Dunn Attorneys Named Among Washingtonian Magazine’s 2022 Top Lawyers

Lessons From Justices’ Evolving Approach To COVID Rulings

Gibson Dunn Appoints Akiva Shapiro as the Chair of the New York Administrative Law and Regulatory Practice Group

Proposed Amendment to Federal Acquisition Regulation Would Require Contractors to Disclose Greenhouse Gas Emissions, Emissions Reduction Targets, and Climate-Based Financial Risks

Department of Labor Initiates Rulemaking to Revise Its Interpretation of Who Qualifies as an Independent Contractor Under the FLSA

Labor Department Proposes “QPAM” Changes

Supreme Court Upholds Limits On Environmental Protection Agency’s Authority To Shift Sources Of Energy Production

Best Lawyers in France 2023 Recognizes 18 Gibson Dunn Attorneys

The FTC at Full Strength: What to Expect Next

CFPB Invokes Dormant Dodd-Frank Authority to Regulate Nonbank Financial Companies

Employers Beware: Aggressive and Expansive Labor-Focused Antitrust Enforcement Will Remain The New Normal

The Biden Administration’s Digital Assets Executive Order and Its Implications

The Impact of Agency Commissioners’ Dissents

New York City Enacts Law Restricting Use of Artificial Intelligence in Employment Decisions

Infrastructure Bill’s New Reporting Requirements May Have Sweeping Implications for Cryptocurrency Ecosystem

EEOC Expands Guidance on Religious Exemptions to Vaccine Mandates Under Title VII

White House Task Force Announces New COVID Safety Protocols for Federal Contractors

President Biden Announces COVID-19 Vaccine Mandates, with Legal Challenges Likely to Follow

President Signs Executive Order Directing Agencies to Address Wide Range of Businesses’ Competitive Practices, Including Non-Compete Agreements

Supreme Court Holds Federal Housing Finance Agency’s Structure Unconstitutional; Remands For Further Proceedings On Appropriate Remedy

Supreme Court Holds That Anti-Injunction Act Does Not Bar Pre-Enforcement Challenges To Reporting Mandates Backed By Both Tax Penalties And Criminal Punishment

Helgi Walker Named to the 2021 Lawdragon Legends of The 500

Supreme Court Holds That FCC Permissibly Relaxed Media Ownership Limits

Former U.S. Secretary of Labor Eugene Scalia Returns to Gibson Dunn

Department of Health and Human Services Delays Effective Date of Final Rule Limiting Retrospective Manufacturer Rebates on Medicare Part D Prescription Drug Prices

Biden Administration Issues Rulemaking Freeze and New Orders Governing the Regulatory Process

Gibson Dunn Ranked in the 2021 UK Legal 500

Aggressive SEC Enforcement Actions Could Limit Small Business Recovery Resources

Department of Justice Report Highlights Proposals by Gibson Dunn’s Helgi Walker to Modernize the Administrative Procedure Act

Supreme Court Holds That Consumer Financial Protection Bureau’s Structure Is Unconstitutional

Best Lawyers in France 2021 Recognizes 17 Gibson Dunn Attorneys

President Trump Issues Executive Order on Regulatory Relief to Support Economic Recovery

Law360 Names Seven Gibson Dunn Lawyers as 2019 Rising Stars

Gibson Dunn Lawyers Recognized in the Best Lawyers in America® 2020

Best Lawyers in France 2020 Recognizes 16 Gibson Dunn Attorneys

Supreme Court Sends 2020 Census Citizenship Question Back to the Department of Commerce, Citing Contrived Rationale

Reinforcing Limits On Its Use, Supreme Court Upholds Auer Deference In Veterans Affairs Dispute

Supreme Court Avoids Answering Question On Hobbs Act Deference To FCC Orders

Gibson Dunn Named Best Regulatory Law Firm of the Year by GamblingCompliance

Gibson Dunn Ranked in Legal 500 EMEA 2019

Gibson Dunn Ranked in the 2019 UK Legal 500

Who’s Who Legal Recognizes Six Gibson Dunn Partners

Gibson Dunn Named Regulatory Law Firm of the Year by GamblingCompliance

D.C. Circuit Vacates Part of FCC’s 2015 TCPA Order in ACA International, et al. v. FCC, et al.

Fifth Circuit Vacates Labor Department’s “Fiduciary Rule” “In Toto” in Chamber of Commerce of U.S.A., et al. v. U.S. Dep’t of Labor

EPA In The Trump Era: The DOJ’s 3rd-Party Payment Policy

EPA In The Trump Era: Settling Mandatory Duty Lawsuits

Difficultés objectives: La Cour de justice de l’Union européenne considère qu’à défaut de clause prévoyant la possibilité d’adapter, même de façon importante, un marché public au cours de son exécution

Méthode de notation: Le Conseil d’État rappelle que le juge des référés précontractuels ne dispose pas du pouvoir d’annuler la procédure de passation d’un marché public de défense et qu’un pouvoir adjudicateur ne peut retenir une méthode de notation ayant

Analysis of March 6, 2017 Executive Order on Immigration

Ninth Circuit Court of Appeals Issues Opinion Upholding Nationwide TRO of January 27 Immigration-Related Executive Order

President Trump Issues Executive Order on Financial Regulation, and Memorandum on Department of Labor Fiduciary Rule

Recent Developments Regarding Executive Order on Immigration

President Trump Issues Executive Order on Reducing Regulation and Controlling Regulatory Costs

President Trump Issues Executive Order on Immigration