Administrative Law and Regulatory Practice

Overview

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 American Lawyer named Gibson Dunn a Finalist in its 2022 Litigation Department of the Year competition, noting that “when news breaks and the pressure rises, clients call Gibson Dunn’s litigators to regain control.” This award follows our unprecedented four wins in this biennial competition. In recognition of the importance of the administrative law and regulatory practice area and our firm’s capabilities, Gibson Dunn was also named a finalist for the White Collar/Regulatory Department of the Year. The firm was the 2016 White Collar/Regulatory winner, when The American Lawyer noted 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.”

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.

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.

RECENT PUBLICATIONS

Gibson Dunn Secures Nationwide Relief from Federal Trade Commission’s Non-Compete Rule

-August 20, 2024

Law360 Names Russell Balikian a 2024 Telecommunications Rising Star

-August 2, 2024

FDIC Proposes Significant Changes to Its Brokered Deposits Rules

-August 1, 2024

Motions for Summary Judgment Filed in Challenge to the Federal Trade Commission’s Non-Compete Rule

-July 22, 2024

Webcast: What the 2023 Supreme Court Term Means for Federal Regulators—Loper Bright, Corner Post, Jarkesy, and Other Leading Cases

-July 11, 2024

Supreme Court Holds The Seventh Amendment Entitles A Defendant To A Jury Trial When The SEC Seeks Civil Penalties For Securities Fraud

-June 27, 2024

Gibson Dunn Wins Sweeping Victory in Fully Overturning SEC Private Funds Rule

-June 5, 2024

All Roads Lead to Dallas: FTC Non-Compete Rule Set to Face Its First Legal Test in the Northern District of Texas

-May 23, 2024

FTC Issues Final Rule Barring Employee Non-Compete Agreements

-April 24, 2024

The Corporate Transparency Act Declared Unconstitutional: What It Means for You

-March 18, 2024

SEC Adopts Sweeping New Climate Disclosure Requirements for Public Companies

-March 8, 2024

Former White House Counsel Stuart Delery Rejoins Gibson Dunn in Washington, D.C.

-February 5, 2024

Department of Labor Releases Final Rule Revising Its Interpretation of Who Qualifies as an Independent Contractor Under the FLSA

-January 9, 2024

Department of Labor Initiates Rulemaking to Increase Compensation Thresholds for Minimum Wage and Overtime Exemptions

-September 1, 2023

Federal Banking Agencies Issue Basel III Endgame Package of Reforms

-August 3, 2023

Supreme Court Holds Biden Administration’s Mass Student Loan-Cancellation Program Unlawful

-June 30, 2023

Akiva Shapiro Receives Pursuit of Justice Award

-May 15, 2023

President Biden Issues Executive Order Making Important Changes to How Agencies Weigh the Costs and Benefits of Regulatory Actions

-April 25, 2023

FSOC Proposes Overhauling Its Standards for Designating Nonbank Companies as Systemically Important

-April 25, 2023

Supreme Court Holds That Federal District Courts Have Jurisdiction To Hear Structural Challenges To FTC And SEC

-April 14, 2023

FTC’s Latest Proposed Rulemaking Would Impose Significant New Requirements and Risks on Sellers Using Negative Option Offers

-April 12, 2023

Gas Stoves: Developing Regulatory and Litigation Actions

-March 29, 2023

In Fair Labor Standards Act Case, Supreme Court Holds That Employees Paid A Daily Rate Are Not Compensated On A “Salary Basis”

-February 22, 2023

Webcast: Article 78 Challenges to Government Action in New York: Strategic Considerations and Pitfalls

-January 10, 2023

New INFORM Consumers Act Imposes Seller Diligence and Disclosure Requirements for Online Marketplaces

-January 5, 2023

FTC Proposes Rule to Ban Non-Compete Clauses

-January 5, 2023

Seven Gibson Dunn Attorneys Named Among Washingtonian Magazine’s 2022 Top Lawyers

-January 3, 2023

Lessons From Justices’ Evolving Approach To COVID Rulings

-November 28, 2022

Gibson Dunn Appoints Akiva Shapiro as the Chair of the New York Administrative Law and Regulatory Practice Group

-November 17, 2022

Proposed Amendment to Federal Acquisition Regulation Would Require Contractors to Disclose Greenhouse Gas Emissions, Emissions Reduction Targets, and Climate-Based Financial Risks

-November 15, 2022

Department of Labor Initiates Rulemaking to Revise Its Interpretation of Who Qualifies as an Independent Contractor Under the FLSA

-October 11, 2022

Labor Department Proposes “QPAM” Changes

-July 26, 2022

Supreme Court Upholds Limits On Environmental Protection Agency’s Authority To Shift Sources Of Energy Production

-June 30, 2022

Best Lawyers in France 2023 Recognizes 18 Gibson Dunn Attorneys

-June 23, 2022

The FTC at Full Strength: What to Expect Next

-May 16, 2022

CFPB Invokes Dormant Dodd-Frank Authority to Regulate Nonbank Financial Companies

-May 5, 2022

Employers Beware: Aggressive and Expansive Labor-Focused Antitrust Enforcement Will Remain The New Normal

-April 18, 2022

The Biden Administration’s Digital Assets Executive Order and Its Implications

-March 10, 2022

The Impact of Agency Commissioners’ Dissents

-January 12, 2022

New York City Enacts Law Restricting Use of Artificial Intelligence in Employment Decisions

-December 27, 2021

Infrastructure Bill’s New Reporting Requirements May Have Sweeping Implications for Cryptocurrency Ecosystem

-November 18, 2021

EEOC Expands Guidance on Religious Exemptions to Vaccine Mandates Under Title VII

-October 26, 2021

White House Task Force Announces New COVID Safety Protocols for Federal Contractors

-September 26, 2021

President Biden Announces COVID-19 Vaccine Mandates, with Legal Challenges Likely to Follow

-September 10, 2021

President Signs Executive Order Directing Agencies to Address Wide Range of Businesses’ Competitive Practices, Including Non-Compete Agreements

-July 9, 2021

Supreme Court Holds Federal Housing Finance Agency’s Structure Unconstitutional; Remands For Further Proceedings On Appropriate Remedy

-June 23, 2021

Supreme Court Holds That Anti-Injunction Act Does Not Bar Pre-Enforcement Challenges To Reporting Mandates Backed By Both Tax Penalties And Criminal Punishment

-May 17, 2021

Helgi Walker Named to the 2021 Lawdragon Legends of The 500

-April 15, 2021

Supreme Court Holds That FCC Permissibly Relaxed Media Ownership Limits

-April 1, 2021

Former U.S. Secretary of Labor Eugene Scalia Returns to Gibson Dunn

-March 30, 2021

Department of Health and Human Services Delays Effective Date of Final Rule Limiting Retrospective Manufacturer Rebates on Medicare Part D Prescription Drug Prices

-February 2, 2021

Biden Administration Issues Rulemaking Freeze and New Orders Governing the Regulatory Process

-January 21, 2021

Gibson Dunn Ranked in the 2021 UK Legal 500

-October 5, 2020

Aggressive SEC Enforcement Actions Could Limit Small Business Recovery Resources

-August 20, 2020

Department of Justice Report Highlights Proposals by Gibson Dunn’s Helgi Walker to Modernize the Administrative Procedure Act

-August 14, 2020

Supreme Court Holds That Consumer Financial Protection Bureau’s Structure Is Unconstitutional

-June 29, 2020

Best Lawyers in France 2021 Recognizes 17 Gibson Dunn Attorneys

-June 25, 2020

President Trump Issues Executive Order on Regulatory Relief to Support Economic Recovery

-May 20, 2020

Domaine privé : Le Ministère de l’Économie et des Finances considère que les autorités gestionnaires du domaine privé doivent mettre en oeuvre “des procédures similaires à celles qui prévalent pour le domaine public”, à l’aune de l’arrêt Promoimpresa de la Cour de justice de l’Union européenne du 14 juillet 2016 (Réponse ministérielle)

-September 12, 2019

Law360 Names Seven Gibson Dunn Lawyers as 2019 Rising Stars

-September 9, 2019

Gibson Dunn Lawyers Recognized in the Best Lawyers in America® 2020

-August 15, 2019

Best Lawyers in France 2020 Recognizes 16 Gibson Dunn Attorneys

-July 1, 2019

Supreme Court Sends 2020 Census Citizenship Question Back to the Department of Commerce, Citing Contrived Rationale

-June 28, 2019

Reinforcing Limits On Its Use, Supreme Court Upholds Auer Deference In Veterans Affairs Dispute

-June 26, 2019

Supreme Court Avoids Answering Question On Hobbs Act Deference To FCC Orders

-June 20, 2019

Gibson Dunn Named Best Regulatory Law Firm of the Year by GamblingCompliance

-May 1, 2019

Gibson Dunn Ranked in Legal 500 EMEA 2019

-April 19, 2019

Gibson Dunn Ranked in the 2019 UK Legal 500

-November 21, 2018

Who’s Who Legal Recognizes Six Gibson Dunn Partners

-May 25, 2018

Gibson Dunn Named Regulatory Law Firm of the Year by GamblingCompliance

-April 18, 2018

D.C. Circuit Vacates Part of FCC’s 2015 TCPA Order in ACA International, et al. v. FCC, et al.

-March 19, 2018

Fifth Circuit Vacates Labor Department’s “Fiduciary Rule” “In Toto” in Chamber of Commerce of U.S.A., et al. v. U.S. Dep’t of Labor

-March 18, 2018

EPA In The Trump Era: The DOJ’s 3rd-Party Payment Policy

-February 23, 2018

EPA In The Trump Era: Settling Mandatory Duty Lawsuits

-February 22, 2018

Difficultés objectives: La Cour de justice de l’Union européenne considère qu’à défaut de clause prévoyant la possibilité d’adapter, même de façon importante, un marché public au cours de son exécution

-September 7, 2017

Méthode de notation: Le Conseil d’État rappelle que le juge des référés précontractuels ne dispose pas du pouvoir d’annuler la procédure de passation d’un marché public de défense et qu’un pouvoir adjudicateur ne peut retenir une méthode de notation ayant

-May 24, 2017

Analysis of March 6, 2017 Executive Order on Immigration

-March 7, 2017

Ninth Circuit Court of Appeals Issues Opinion Upholding Nationwide TRO of January 27 Immigration-Related Executive Order

-February 10, 2017

President Trump Issues Executive Order on Financial Regulation, and Memorandum on Department of Labor Fiduciary Rule

-February 6, 2017

Recent Developments Regarding Executive Order on Immigration

-February 1, 2017

President Trump Issues Executive Order on Reducing Regulation and Controlling Regulatory Costs

-January 31, 2017

President Trump Issues Executive Order on Immigration

-January 30, 2017

Tools of Transition: Procedural Devices That Could Help the President-Elect Implement His Agenda

-November 30, 2016

FCC Votes to Adopt New Regulations Governing Use of Customers’ Proprietary Information by Providers of Broadband Internet Access Service

-November 7, 2016

Confronting EPA’s Refusal To Consider Industry Costs

-October 31, 2016

PHH Achieves Historic D.C. Circuit Victory Declaring CFPB Structure Unconstitutional and Rejecting Agency’s Imposition of $109 Million Penalty Under RESPA

-October 13, 2016

Rule Of Law Trumps Rhetoric In Chevron’s 2nd Circ. Win

-August 19, 2016

Contrôle des concentrations économiques

-June 1, 2016

Keine Ausbeutung in der Lieferkette

-May 31, 2016

Third Circuit Strikes Down FCC Rule Prohibiting Joint Sales Agreements and Stresses FCC’s Legal Duty to Review All Broadcast Ownership Rules Every Four Years

-May 26, 2016

Sensible Regulations Encourage Drone Use

-April 11, 2016

Commercial Drone Industry May Be Ready For Takeoff Soon

-February 18, 2016

Paxton Ruling on Fantasy Sports is Good for Texans

-January 26, 2016

Courts Make Doing Good Abroad Bad For Business At Home

-January 14, 2016

Do CERCLA Cost Recovery And Contribution Rights Overlap?

-August 7, 2015

Policy Options for a Revised EU Access and Interconnection Regime

-June 30, 2015

U.S. Supreme Court Issues Important Decision Regarding Agencies’ Duty to Consider Costs in Rulemaking

-June 29, 2015

Immigration, alcohol and rule of law

-March 7, 2015

U.S. Court of Appeals for the D.C. Circuit Vacates FCC “Net Neutrality” Rules

-January 14, 2014

OSHA’s Proposed Silica Limits Have Major Implications for Fracking, Construction, Manufacturing, and Maritime Industries

-August 28, 2013

Calif. Fracking Litigation May Bring Economic Harm

-December 4, 2012

The Availability of Common Law Privileges for Witnesses in Congressional Investigations

-August 6, 2012

In a Ruling with Important Implications for Courts’ Deference to Agencies, U.S. Supreme Court Rejects Department of Labor Position on Overtime for “Outside Sales” Employees

-June 19, 2012

Case Study: City Of Stockton V. BNSF Railway

-October 18, 2011

White House Gives Federal Agencies Additional Guidance on Reviewing Existing Regulations

-May 3, 2011

Presidential Executive Order on Regulation Suggests U.S. Rulemakings Will Be Examined More Closely

-January 21, 2011

Second Circuit Issues Wage-Hour “Administrative/Production Dichotomy” Decision Out of Step with Other Circuits

-December 9, 2009

The FCPA and Analogous Foreign Anti-Bribery Laws–Overview, Recent Developments, and Acquisition Due Diligence

-September 24, 2007