Companies and trade associations often do not retain outside counsel until a rulemaking is complete and litigation over the final rule has begun.  However, deferred involvement can prove to be a serious mistake.  In controversial rulemakings, experienced counsel serve virtually the same function as they would in a trial:  marshaling evidence and arguments to persuade the agency of the client's position and, that failing, to establish the best possible record for judicial review of the final rule.  Evidence not presented in a rulemaking ordinarily cannot be used to challenge or defend the rule in court; accordingly, it often is critical to develop a rulemaking strategy with the assistance of counsel and an eye toward eventual litigation.  Gibson Dunn has participated in countless rulemakings before federal and state agencies, including:

• OSHA "ergonomics" regulation. Gibson Dunn played a principal role in opposing the OSHA "ergonomics" rule recently 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, the firm 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, the Firm led industry's court challenge to the rule and assisted with legislative strategy, including testifying before Congress on use of the Congressional Review Act.
  
• "Auditor independence" rulemaking. Gibson Dunn represented several leading accounting firms in connection with a major SEC rulemaking that threatened to dramatically restrict the services that accounting firms can provide to clients that 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.