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Regulatory Litigation

LEADERSHIP: Marc D. Machlin


Energy Engagements

  • a developer of solar projects in connection with a series of successful projects in California
  • a leading independent power producer in securing approvals from state public utility commissions for expanded operations as a competitive retail supplier
  • a global manufacturer of building products in connection with the development of solar projects in New Jersey, Pennsylvania, and New York
  • a hospital in connection with the successful development of a gas-fired cogeneration system and an underground thermal storage facility
  • an electric utility in connection with an antitrust investigation by the FTC, 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).


  • a rail subsidiary of a Class I carrier in connection with ongoing STB and federal court proceedings relating to a dispute over access rights to a rail yard in the Chicago area
  • 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 USDOT
  • 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 NHTSA
  • 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
  • the operator of an air charter operation and a regional airport in connection with an FAA investigation; successfully resolved the matter and avoided all penalties.

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, USDOT 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

  • the Defense Supply Center Philadelphia in connection with a contract to supply food to all American servicemen and women in South Korea
  • an offeror in connection with 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
  • the Army’s Operations Support Command in connection with a contract for yellow dye, on the grounds that the Army had violated the Trade Agreements Act
  • the Army’s Military Traffic Management Command in connection with a contract to supply towing services to Guantanamo Bay, Cuba
  • the Army Corps of Engineers in connection with litigating defective specification and cardinal change claims arising from an environmental cleanup contract
  • a Navy contract for guard services at Vieques Island, Puerto Rico
  • the Army in connection with the litigation against the Department of Defense in the federal district court for 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.
  • an offeror in connection with a contract, which was successfully defended in a federal district court and in the court of appeals, by the General Services Administration for a new federal building.

Regulation of Telecommunications Providers

  • a telecommunications provider based in South Carolina and North Carolina in connection with a proposed $1 billion sale of the company to a Swedish private equity firm; represented the company in ongoing FCC proceedings, State PUC proceedings, and proceedings before the Committee On Foreign Investment In the United States (CFIUS)
  • a leading telecommunications provider based in Pennsylvania in connection with a build-out of a new private network
  • a private equity firm in connection with an acquisition successful of a regional provider of ambulance services; assisted the company in obtaining all necessary FCC approvals for the change in control relating to essential FCC radio licenses
  • a telecommunications provider in connection with a PUC proceeding that stems from the rehabilitation of a bridge used by a freight railroad, where a group of telecommunications companies and an electric utility own and operate facilities located above or below the bridge
  • a private equity firm based in China in connection with a review of the FCC’s restrictions on foreign ownership
  • a cable television system and an affiliated telephone company in connection with a series of complaints filed with the Pennsylvania PUC; obtained PUC orders dismissing all filed complaints on jurisdictional grounds
  • a telecommunications provider based in Canada in connection with a series of disputes relating to the Universal Service Fund charges imposed by the FCC
  • a venture capital fund focused on the communications sector in connection with a review of statutory limitations on lobbying activities
  • a cable television system and affiliated Internet service provider in connection with Pennsylvania PUC proceedings relating to a proposed acquisition of another cable television company; obtained all necessary PUC orders authorizing the proposed acquisition
  • an Internet-based telephone company in connection with the successful de-tariffing of certain interexchange services in Pennsylvania
  • a state department of corrections in connection with a class action challenging pay telephone rates established by a private contractor for State prisons; persuaded the plaintiffs to dismiss all claims against the State agency and advised the State agency on the FCC’s policies relating to pay telephone rates for prisons.

FTC Regulation

  • an on-line provider of employment services in connection with an FTC investigation focused on use of personal information provided by customers
  • a leading retail chain in connection with an FTC investigation that focused on the retailer’s distribution of a “free” magazine subscription
  • 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.

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