Administrative Law and Regulatory Practice


Eugene Scalia Washington, D.C.
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Helgi C. Walker Washington, D.C.
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Litigation Dept of the Year

In its 2016 Litigation Department of the Year competition, The American Lawyer named our firm the winner in the White Collar/Regulatory category, noting 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."

As The American Lawyer's creation of this new practice area category suggests, 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 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.

Experience and Recent Representations

  • 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.