Most laws are made not by legislators, but by unelected administrators in federal and state agencies. These administrative rules regulate most facets of American life and, when agency priorities are misaligned with statutory law or the interests of the regulated public, they can increase costs, throttle innovation, jeopardize investment-backed expectations, create unfair competitive disadvantages, and imperil cherished liberties.
Many of our lawyers have previously held senior positions at these rulemaking institutions, providing our team and our clients with an intricate understanding of the laws they administer and the policy goals that motivate them. Some of these former roles include:
- Assistant Attorney General, U.S. Department of Justice (DOJ)
- Deputy Assistant Attorney General, DOJ
- Deputy Associate Attorney General, DOJ
- Chief of Staff and Senior Counselor, DOJ
- Enforcement Director of the Office of Enforcement, U.S. Consumer Financial Protection Bureau
- Senior Associate Counsel to the President, The White House
- General Counsel, California Environmental Protection Agency
- Deputy Secretary for Law Enforcement and General Counsel, California Environmental Protection Agency
- Director, California Department of Toxic Substances
- Director of the Office of Proceedings, U.S. Surface Transportation Board
As a result, our practice is built to lead companies, trade associations, and individuals through every stage of the regulatory process.
Rulemaking Litigation
Our work spans all phases of the rulemaking process, from crafting comments and engaging directly with agencies to challenging rules in judicial or administrative courts, including claims involving statutory authority, procedural violations, and constitutional limits. By integrating regulatory insight with litigation strategy, we develop approaches to rulemaking that are both effective with the agency and create an administrative record that optimally positions clients for any ensuing litigation or arbitration. We have extensive experience in Administrative Procedure Act challenges and parallel state-law frameworks, as well as disputes involving agency guidance, policy statements, and rulemaking by enforcement.
Successful challenges require foresight, precision in building the administrative record, and a strategy that anticipates how courts will evaluate agency decision-making. Our team approaches rulemaking disputes with trial and appellate review firmly in mind.
Government-Facing Civil Litigation
Governments wield significant discretion and procedural advantages, which can make litigating against federal and state entities particularly challenging. Our team understands these dynamics and develops strategies that account for both regulatory realities and litigation risk.
We represent clients in disputes with federal and state agencies over the scope and interpretation of their laws and regulations. These matters include investigations, civil enforcement actions, and adjudicatory proceedings raising novel questions about agency authority, as well as constitutional issues. We advocate before agencies to resolve disputes efficiently when possible, and litigate aggressively when necessary. Our experience spans a wide range of agencies, including the DOJ, the Department of Health and Human Services, the Food and Drug Administration, the Environmental Protection Agency, the Federal Communications Commission, the Securities and Exchange Commission, the Department of the Treasury, the Federal Trade Commission, the Federal Energy Regulatory Commission, and numerous state authorities.
Private Litigation in Highly Regulated Industries and Spaces
Even when a government entity is not a party to an action, regulatory frameworks often shape private disputes, particularly in industries such as aviation, rail, technology, and telecommunications. In such instances, knowledge of the regulatory environment is essential. We frequently represent clients in commercial litigation and arbitration where agency rules, industry-specific statutes, or constitutional principles define the legal landscape.
Our familiarity with regulatory regimes allows us to identify defenses, jurisdictional arguments, and strategic considerations that may not be apparent in traditional commercial litigation. We understand how regulators may respond to, influence, or be affected by private litigation, and incorporate those considerations into our case strategy.
