COMPLIANCE CHAMPIONS

Regulatory Litigation

LEADERSHIP: Marc D. Machlin

Pepper Hamilton LLP’s regulatory litigation practice is dynamic and broad in scope. To achieve the desired results for our clients, we draw upon our knowledge of the regulatory process and our understanding of particular sectors of the economy.

The firm’s regulatory practice extends into the following substantive areas:

  • strategic advice to public utilities, railroads and other firms confronting deregulation or restructuring
  • representing utilities, renewable energy developers, independent power producers, competitive energy suppliers, and industrial energy users in transactions and in proceedings before the Federal Energy Regulatory Commission (FERC), the U.S. Department of Energy (DOE) and state public utility commissions
  • representing rail carriers, motor carriers, aviation services providers, and manufacturers of automotive equipment in proceedings before the U.S. Department of Transportation (USDOT) and its various sub-agencies
  • representing telecommunications providers in proceedings before the Federal Communications Commission (FCC) and before state public utility commissions
  • representing foreign and domestic companies in international trade disputes and in a wide array of import-export matters
  • representing defense sector clients and other companies in government contracts litigation
  • assisting retailers, manufacturers, e-commerce companies, and other clients affected by the Federal Trade Commission’s (FTC) rules and policies pertaining to advertising, labeling and deceptive trade practices.

While many of our representations involve contested administrative proceedings or appeals from agency orders, we also have an active counseling practice, focusing on avoiding enforcement actions or other lengthy proceedings. In addition, we advise clients on the regulatory aspects of major transactions, such as mergers, acquisitions and divestitures.

Strategic Advice to Network Industries Undergoing Deregulation or Restructuring

For more than 25 years, Pepper lawyers have advised clients in network industries undergoing a full or partial transition from regulation to competition. By their nature, network industries—such as public utilities, railroads and certain telecommunications firms—pose the problem of how to structure relationships between competing but interconnected firms. A related question is how to organize business relations between suppliers of network services and their customers in a way that is consistent with the public interest. The transition of a regulated industry to competition raises profound issues that can affect a company’s structure, business plan and corporate culture. These businesses also must free themselves from certain forms of regulation and move from an operational or service focus to a market focus.

We employ an interdisciplinary approach that involves economists, accountants, management consultants, engineers, scientists and other technical personnel. We use litigation only when necessary, and have the capacity to solve problems without resort to the courts or to the regulatory agencies.

In addition, Pepper draws on the experience of its clients and outside resources, as necessary. We are willing to challenge the conventional wisdom inside a corporation or within an industry, always calibrating our efforts with our client’s willingness to accept risk.

We have found the theoretical and practical issues that arise in these representations lead to insights that can be used in other industries. The details of access pricing, essential facility issues, network antitrust theories and organizational restructuring learned in one industry can be helpful in assessing similar issues in another. In fact, these cross-industry perspectives facilitate creative approaches that may be beyond the perception of those with experience in only one regulated industry.

Energy Regulation

Pepper practices before FERC, DOE and state public utility commissions. We advise clients on energy projects, counsel on ratemaking issues, and advise on energy regulatory aspects of transactions. In the electric power sector, our clients include investor-owned utilities, competitive energy suppliers, developers of renewable energy projects, independent power producers, industrial customers, and an independent transmission company. In the natural gas sector, our clients include local gas distribution companies, energy marketers, and industrial gas consumers.

Transportation Law

We practice before USDOT and its sub-agencies, including the Federal Aviation Administration, the National Highway Traffic Safety Administration (NHTSA), the Surface Transportation Board and the Federal Motor Carrier Safety Administration. In addition to handling licensing, permitting and rulemaking proceedings, we assist clients with regulatory aspects of major transactions, such as mergers, acquisitions and divestitures. Our clients include rail carriers, motor carriers, barge lines, large shippers, aviation services firms, manufacturers of automotive equipment and manufacturers of aircraft components.

International Trade

We provide assistance in three broad areas of international trade law:

  • international trade litigation;
  • customs and import restrictions; and
  • export controls and economic sanctions.

Our international trade litigation experience includes antidumping and countervailing duty investigations and reviews, Section 337 investigations, Section 201 “Safeguard” cases and Section 301 actions. We have represented clients in proceedings under the World Trade Organization (WTO) agreements and before the U.S. Department of Commerce, the U.S. International Trade Commission, the Office of the U.S. Trade Representative, the U.S. Court of International Trade, the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court. On a regular basis, we also represent clients that are pursuing transactions that are subject to review and approval by the Committee on Foreign Investment in the United States (CFIUS).

Government Contracts

Our government contracts practice includes counseling and litigation, and covers a broad spectrum of government contract-related provisions. We have represented clients prosecuting and defending bid protests, in a wide range of industries, in all available fora. We also have represented clients in claims arising out of non-payment and improper terminations, both at the Court of Federal Claims and in boards of contract appeal.

Our counseling practice covers most sections of the Federal Acquisition Regulation (FAR), including provisions dealing with human resources, foreign origin, cost principles and selection criteria. In addition, we are experienced in advising clients concerning subcontracts and in litigating subcontract issues that cannot be resolved amicably.

Telecommunications

We counsel telecommunications providers on rules and policies adopted by the FCC. We often represent telecommunications firms in seeking licenses and approvals from the FCC, including approvals for mergers and acquisitions. We also represent telecommunications firms in proceedings before state public utility commissions.

As part of our regulatory work in this sector, we advise clients that are building out new telecommunications networks. We also represent telecommunications firms that are targeted in government investigations and in complaint proceedings.

FTC Regulation of Labeling, Advertising and Marketing

We counsel clients on compliance with FTC rules and policies applicable to labeling, advertising and marketing. We regularly represent retailers, distributors and manufacturers that are targeted in FTC investigations or have received Civil Investigative Demands (CIDs) from the FTC. We also assist clients in fine-tuning marketing campaigns for the purpose of ensuring compliance with FTC rules or policies. A substantial portion of this work involves online marketing and customer rewards programs.

In addition, from time to time, we represent firms injured by deceptive marketing campaigns or deceptive advertising. Where appropriate, we aggressively challenge deceptive marketing practices in the courts. If a client is facing substantial economic harm due to deceptive advertising or marketing, we often work closely with the FTC staff to discourage the unlawful conduct.

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