Baruch A. Fellner, a partner in Gibson, Dunn & Crutcher's Washington, D.C. office, joined the firm in 1986 as a member of the Labor Department. He has extensive experience in federal civil litigation, including labor, pension, profit sharing, employee benefits, occupational safety and health, and consumer product safety issues.
In 1990, Mr. Fellner founded the Firm's occupational safety and health practice, which is recognized as one of the leading national OSHA practices especially in such areas as ergonomics litigation, challenges to OSHA regulations and OSHA fatality crisis management. Mr. Fellner's OSHA clients include UPS, Coke, Pepsi, Anheuser-Busch, General Electric Medical and Oldcastle Industries.
Mr. Fellner has represented these and other industry leaders in some of the most significant OSHA matters including:
- Successfully represented Coca-Cola Enterprises (“CCE”) and the Pepsi Bottling Group (“PBG”) in the most important ergonomics citations in OSHA's recent history with multi-million dollar implications for CCE and PBG in particular and the beverage industry in general. The citations would have had a sweeping impact on every facet of soft drink beverage delivery – from the loading and unloading of product, to the carts used to deliver product to customers. CCE and PBG were able to preserve their positions that the data-driven medicine does not support injuries attributable to material handling – language that no other OSHA settlement contains.
Successfully represented the National Association of Manufacturers and over 100 other industry associations and companies in leading a challenge to the federal ergonomics regulation. Also played a lead role in commenting on the proposed rule and consulted with Congress and leading industry associations as the ergonomics regulation was repealed by legislation.
Represented the U.S. Chamber in opposing the ANSI Z-365 “consensus” ergonomics standard. The standard was ultimately abandoned.
Successfully challenged OSHA’s Cooperative Compliance Program in the Court of Appeals for the District of Columbia that would have required the implementation of comprehensive health and safety programs without providing stakeholders with an opportunity for notice and comment under the Administrative Procedures Act.
Represented the National Association of Manufacturers in the challenge to OSHA’s recordkeeping regulation culminating in a settlement agreement that provided important clarity to recordkeeping requirements.
Currently represents Hyatt in ergonomic complaints and citations generated by union labor dispute; Wal-Mart in a crowd-management citation resulting from a post-Thanksgiving sale crowd crushing fatality; and SeaWorld in its killer whale trainer fatality case.
Mr. Fellner has represented a number of clients before the Consumer Product Safety Commission over the past twenty years. His experience includes convincing the CPSC that certain furnace equipment did not pose a substantial product hazard; recently, he represented Interactive Health with respect to the recall of a reclining chair.
Mr. Fellner is also a leading attorney authority on data-driven medicine related to musculoskeletal disorders. See Baruch A. Fellner, Derry Dean Sparlin, Jr., & Daniel A. Cantu, Challenges in Regulating the Workplace to Prevent Musculoskeletal Disorders, 4 Bender's Labor & Employment Bulletin 1 (2004), analyzing the debate over mandatory ergonomics guidelines, identifying the fundamental problems raised by many of the proposals advanced to date.
Mr. Fellner served for eight years in the Solicitor's Office of the Department of Labor as counsel for both Appellate Litigation and Regional Litigation for the Occupational Safety and Health Division. In those capacities, he was in charge of all litigation before the Occupational Safety and Health Review Commission, and before the Courts of Appeals. Prior to assuming his responsibilities with the Occupational Safety and Health Administration (OSHA) division, he served in the appellate court branch of the National Labor Relations Board for more than four years. Throughout his career, Mr. Fellner has argued more than 75 cases in all of the courts of appeals, as well as numerous substantive motions in district courts throughout the nation.
Mr. Fellner formerly served as Associate General Counsel of the Pension Benefit Guaranty Corporation, a federal agency charged with administering the insurance program for all private defined benefit pension plans, where he was in charge of overseeing PBGC's litigation program. In that capacity, he coordinated the tactics and strategy of defending the constitutionality of the Multiemployer Pension Plan Amendments Act of 1980, against 165 separate district court challenges, and argued Gray v. PBGC and PBGC v. Connolly before the Supreme Court of the United States, achieving unanimous decisions in both cases.
Mr. Fellner was ranked as one of the top employment lawyers in the District of Columbia by Chambers USA – America’s Leading Business Lawyers (2005-2011 editions), in which he is acknowledged for 'inspiring incredible client confidence' and his 'encyclopedic knowledge' of OSHA law. He has been listed in The Best Lawyers in America® 2014 and the 2012 SuperLawyers for Labor and Employment Law work. Mr. Fellner is the co-author of the first book dealing with occupational safety and health law, entitled Occupational Safety and Health Law and Practice (1975), and has authored numerous articles and addressed numerous audiences in the OSHA and pension fields.
After graduating magna cum laude and Phi Beta Kappa from the George Washington University in 1965, Mr. Fellner received his law degree from Harvard Law School in 1968.