Regulatory Litigation

LEADERSHIP: Marc D. Machlin

Energy Engagements

We have represented:

  • an electric utility in connection with an antitrust investigation by the Federal Trade Commission, which focused on a proposed merger between another electric utility and a fuel supplier
  • an owner of a cogeneration plant in resolving a tariff dispute with an electric cooperative that provides backup power
  • a passenger railroad in connection with a 180-megawatt frequency converter project with a cost in excess of $100 million; provided counseling on interconnection and other regulatory issues involving both an electric utility and an independent system operator (ISO)
  • one of the largest purchasers of electricity in the mid-Atlantic region in a proceeding before the Maryland Public Service Commission involving the restructuring of an electric utility, the development of unbundled rates and the establishment of a mechanism allowing the recovery of appropriate stranded costs
  • an industrial company hosting a cogeneration facility in connection with federal court litigation and related FERC proceedings arising under the Public Utility Regulatory Policies Act of 1978 (PURPA); counseled the client on a settlement ending the dispute.


We have represented:

  • a Class I rail carrier in connection with a line sale opposed by another rail carrier holding trackage rights over the transferred line; obtained a favorable STB decision authorizing the transaction
  • a trucking company in a successful administrative appeal of an unfavorable safety rating issued by the U.S. Department of Transportation
  • a producer of sand, gravel and asphalt in connection with the abandonment of a rail segment that bisected a quarry and the resolution of Rails-to-Trails issues
  • the Association of American Railroads in rulemaking proceedings relating to the determination of the industry’s cost of capital and its overall revenue requirements
  • a mirror manufacturer in connection with the development of procedures necessary to ensure compliance with the automotive safety standards issued by the National Highway Traffic Safety Administration
  • a manufacturer of aircraft engine parts; provided advice on FAA policies pertaining to parts manufacturing approval and successfully resolved a dispute with an engine manufacturer.

International Trade

  • representing U.S. petitioners and foreign respondents in antidumping and countervailing duty actions before the U.S. Department of Commerce, the U.S. International Trade Commission, the U.S. Court of International Trade and NAFTA panels; representative industries include lumber, cement, sulfanilic acid, magnesium, manganese sulfate, cookware and red raspberries
  • representing domestic and foreign interests before the Office of the U.S. Trade Representative, the U.S. Congress and WTO panels involving Section 201 “Safeguard” actions, Section 301 and the Generalized System of Preferences; representative industries include steel, wheat gluten and rubber chemicals
  • advising domestic and foreign parties on various import and export regulatory and transportation matters, including issues involving the Federal Maritime Commission, the U.S. Department of Transportation and the Office of Foreign Assets Control, and export licensing questions before the U.S. Departments of State and Defense, and the Commerce Department Bureau of Industry and Security
  • assisting companies in obtaining commodity jurisdiction determinations and necessary export licenses, making voluntary disclosures of violations of the export control laws, assisting in agency investigations of violations and implementing export control compliance programs
  • assisting companies when goods have been excluded or seized by the Bureau of Customs and Border Protection under violations of customs laws or other U.S. laws, including negotiations over return of seized property. Assisting importers in determining the correct classification and country of origin marking of imported merchandise, preparing customs compliance programs and counseling importers during customs audits, including audits under NAFTA by all three signatory countries.

Government Contracts

  • defending successfully the award of a contract by the Defense Supply Center Philadelphia to supply subsistence food to all American servicemen and women in South Korea
  • protesting the award of a contract for privatizing on-base housing at Ft. Meade; Pepper also advised a different offeror in connection with its offer to provide private housing at Ft. Lewis
  • protesting successfully the award by the Army’s Operations Support Command of a contract for yellow dye, on the grounds that the Army had violated the Trade Agreements Act
  • protesting successfully the award by the Army’s Military Traffic Management Command of a contract to supply towing services to Guantanamo Bay, Cuba
  • litigating defective specification and cardinal change claims against the Army Corps of Engineers arising from an environmental cleanup contract
  • protesting a Navy award of a contract for guard services at Vieques Island, Puerto Rico
  • litigating against the Department of Defense in the federal district court over the Army’s award of a cooperative agreement to establish and maintain an electronic circuit board manufacturing development center. This was one of the last protests litigated in a federal district court, and one of the only protests ever filed concerning the Department of Defense’s regulations concerning cooperative agreements.
  • defended successfully in federal district court and in the court of appeals the award of a contract by the General Services Administration for a new federal building.

FTC Regulation

We have represented:

  • a medical device manufacturer in connection with an independent review of the company’s advertising claims
  • an e-commerce company in the successful development of marketing practices that comply with all FTC regulatory standards
  • a medical device manufacturer in connection with an independent review of the “Made in the USA” claims included in the company’s packaging, labeling and advertising
  • an online sweepstakes company; provided counseling on regulatory requirements in connection with the successful launch of new services
  • an e-commerce company in connection with the successful development of an online customer rewards program.