Government regulation has a profound impact on companies' business operations and is a crucial factor in corporate strategic planning.  Regulatory and enforcement actions by the EPA, FTC, OSHA, SEC, FCC, FDIC, and countless other federal and state agencies can impose significant costs, foreclose promising business opportunities, and at times can threaten the vitality of a company or even an entire industry. 

A thorough understanding of the legal principles governing agency conduct is critical to a successful challenge to an adverse agency action, or to the successful advocacy for or defense of a favorable agency decision.  The legal constraints on government action do not depend solely on the particular agency at issue, but also on general principles of administrative law, such as what constitutes "arbitrary and capricious" agency action; when notice and comment rulemaking is required and what an agency must do to satisfy it; and the application of "Chevron" deference.

The lawyers of Gibson, Dunn & Crutcher's Administrative Law and Regulatory Practice Group have an exceptional capacity to represent clients seeking to challenge or defend government regulation or to bring about appropriate regulatory action.  The group comprises lawyers from an array of practice groups in the firm, including Environment and Natural Resources, Labor and Employment, Securities Litigation and Regulation, Financial Institutions, Government and Commercial Contracts, Antitrust and Trade Regulation, and International Trade and Customs.  The group includes a number of lawyers with high-level government experience, including a former member of Congress, former general counsels to the EPA, Department of Labor (Solicitor of Labor), and Department of Justice (Assistant Attorney General, Office of Legal Counsel); and lawyers who held top legal, policy, and enforcement positions at the FTC, SEC, OSHA, and other agencies.  Lawyers in the Administrative Law group work closely with the firm's Appellate and Constitutional Law Practice Group, whose experience in the U.S. Supreme Court and the federal and state appellate courts is widely recognized to be among the very best in the country.  When an agency's actions warrant Congressional scrutiny, the Firm's Legislative Counsel and Government Relations Practice Group provides sophisticated expert assistance.

Beyond our sub-practices in rulemakings, judicial review of agency actions and enforcement actions noted above, Gibson Dunn lawyers handle a variety of other agency-related matters on a daily basis, including FOIA and reverse-FOIA representations, and seeking variances, exemptions, approvals, and opinions in connection with existing regulations.  In these and countless other regulatory matters, the firm's familiarity with administrative agencies - and the reputation of its Litigation Department - are often decisive. 

Rulemakings

Companies and trade associations often do not retain counsel until a rulemaking is complete and litigation over the final rule has begun.  This deferred involvement of counsel can sometimes prove to be a serious mistake.  In controversial rulemakings, experienced counsel serve virtually the same function as they would at 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 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, 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.

Judicial Review of Agency Action

Gibson Dunn has extensive experience challenging--and defending--regulations and other agency actions in court. Recent matters include:

• U.S. Chamber of Commerce v. SEC, 412 F.3d 133 (D.C. Cir. 2005), and Chamber of Commerce v. SEC, 443 F.3d 890 (D.C. Cir. 2006).  In this pair of cases in the U.S. Court of Appeals for the D.C. Circuit, the Firm twice successfully challenged controversial provisions of the SEC's mutual fund "governance" rule.  The two provisions were initially invalidated by the court in 2005, and remanded to the Commission for further consideration.  Then, in a highly-publicized hasty eight-day rulemaking, the Commission re-adopted the provisions unchanged.  In response to the Commission's action, Gibson Dunn filed an emergency motion seeking a stay of the re-adopted rules.  The court took the unusual step of granting the stay and, on the merits, accepted Gibson Dunn's argument that the SEC had violated the Administrative Procedure Act by relying extensively on evidence outside the administrative record without providing for public comment, and vacated the provisions.
• United States Telecom Ass'n v. FCC, 227 F.3d 450 (D.C. Cir. 2000). Represented a coalition of industry and privacy groups in successfully challenging an FCC rule that required expensive changes in the nation's telecommunications system to facilitate telephone surveillance by law enforcement agencies.  The court held that the FCC had violated constitutional and statutory limitations.
• Chamber of Commerce v. U. S. Department of Labor, 174 F.3d 206 (D.C. Cir. 1999).  Represented the U.S. Chamber of Commerce, National Association of Manufacturers, and six other trade associations in a suit that led to the invalidation of the largest enforcement program in OSHA's history.
• National Wildlife Federation, et al. v. Browner, No. 00-1258 (D.C. Cir.) (pending).  Gibson Dunn represents the pulp and paper industry in challenging the EPA's "Cluster Rule," the agency's first multi-media (air and water) rule addressing emissions limitations and pollution control technology for an entire industry sector.
• Trout Unlimited, et al. v. Babbitt, No. 99-CV-02143 CKK (D.D.C.).  A pro bono Endangered Species Act case challenging a 1997 decision by the Fish & Wildlife Service and the National Marine Fisheries Service to withdraw a proposal to list the Atlantic salmon as an endangered species in seven fishing streams located in the State of Maine.  As a result of the lawsuit, the Services reversed their withdrawal and decided in November 2000 to list these salmon populations as endangered.
• SDS International, Inc. v. United States, No. 00-609C (Fed. Cl. 2001). Represented an Air Force contractor in successfully defending a major contract by the Air Force Air Combat Command.

As noted, in matters of this nature our administrative lawyers call as needed on the expertise of the firm's Appellate and Constitutional Law Practice Group.

Enforcement Actions

Gibson Dunn regularly represents clients in formal and informal enforcement actions before administrative law judges, commissions, and in federal and state court.  The firm has extensive experience with enforcement actions by the EPA, SEC, FDIC, Office of Thrift Supervision, FTC, OSHA, and the Customs Service and the Commerce Department's Bureau of Export Control; with debarment proceedings by the Department of Defense and other agencies; and with proceedings involving numerous other federal and state agencies.