Government & Regulatory Litigation

Our lawyers routinely help clients navigate government investigations, regulatory inquiries, and other sensitive high-stakes matters, including False Claims Act and other types of government contract actions. We regularly advise clients on regulatory compliance and represent clients in enforcement actions. Representative matters include:

• Defending a company providing "back-end" fulfilment services to businesses in the debt industry in a first-of-its-kind case brought by the DOJ on behalf of the FTC, alleging novel violations of the Telemarketing Sales Rule (TSR) and Section 5 of the FTC Act." 
• Defended DISH Network L.L.C. at trial in one of the highest stakes telemarketing cases in the nation, which was brought by the FTC (represented by DOJ) and the states of California, Illinois, North Carolina, and Ohio, pursuant to the TSR and TCPA, seeking civil penalties upward of $23 billion.
• Defended a major shipping company in state and federal False Claims Act proceedings involving shipping charge methodologies.
• Representing a major energy company in connection with civil enforcement and compliance with federal and state consent decrees, interfacing and negotiating with DOJ and EPA.
• Representing a telecommunications company in connection with its compliance with a permanent injunction, and successfully obtaining post-judgment relief, on consent with the DOJ, to ease the injunction's restrictions.
• Successfully defended eCommerce company Grove Collaborative in an FTC investigation of the company's autorenewal and email marketing practices under the Restore Online Shoppers' Confidence Act (ROSCA) and CAN-SPAM Act, resulting in full closure of the investigation.
• Represented an individual in FTC computer support investigation brought under the TSR, resulting in the individual not being named as a defendant in the subsequent litigation.
• Represented the Chief Executive Officer of a large health care company in an FTC investigation alleging violations of the FTC Act, ROSCA, and the TSR, resulting in a no-money settlement for our client. 
• Representing the Alliance of Non-profit Mailers in proceedings before the Postal Regulatory Commission, including with respect to an ongoing rulemaking regarding the US Postal Service's rate system.
• Defend Citibank against civil action brought by the New York Attorney General challenging how Citibank investigates and addresses fraudulent online wire transfers, and raising novel industrywide issues under the Electronic Fund Transfer Act.

Our team represents clients in challenges to government regulations, legislation and enforcement efforts, including through Administrative Procedure Act litigation. In the wake of the Loper Bright Enterprises v. Raimondo Supreme Court decision, which eliminated Chevron deference, regulated companies should have greater latitude to challenge agency action. We file lawsuits when agencies exceed their authority, seek emergency relief when clients face imminent threats, and can help craft persuasive comments on agency proposals to build a record that best positions our clients for future legal challenges.  Representative matters include:

• Successfully represented electric energy generator in Federal Power Act preemption challenges to state price subsidy schemes. The US Supreme Court upheld injunction against state subsidies, agreeing with our argument that the subsidies interfered with exclusive federal authority.
• Represented the Premium Cigar Association and Cigar Rights of America in a challenge to a 2016 Rule that "deemed" premium cigars subject to Food and Drug Administration (FDA) regulation, known as the "Deeming Rule." In August 2023, Judge Mehta of the U.S. District Court for the District of Columbia partially vacated the Rule. The decision exempted premium cigars from the agency’s tobacco product authorities.
• Representing a leading micro-fabrication equipment company in a high-profile challenge to the company's designation as a "Chinese military company" pursuant to Section 1260H(a) of the National Defense Authorization Act for Fiscal Year 2021 by the U.S. Department of Defense. Steptoe zealously advocated for their client to the Department of Defense following the company's designation and has now brought a legal challenge to the designation in the US District Court in DC alleging violations of, among other things, the Administrative Procedures Act and the Due Process clause of the US Constitution.
• Successfully represented hardrock mineral mining company as intervenor in support of Department of Interior regulations governing location of millsite claims in support of mining. DC Circuit upheld regulations under Mining Law of 1870.
• Representing a client in a First Amendment challenge to WMATA's bus advertising guidelines, obtaining a preliminary injunction against WMATA's ban on issue advertising on buses.
• Successfully vacated the Department of the Army's designation of a government contract as having an organizational conflict of interest that would prevent our client from bidding on certain other government contracts. We challenged the designation as arbitrary and capricious and inconsistent with the Army's contracting regulations.
• Successfully enjoined Georgia Department of Agriculture regulation of discount gas price advertising for violating First Amendment commercial speech standards.
• Obtained a preliminary injunction prohibiting California's Department of Public Health from regulating medical waste taken outside the state for treatment, in violation of the dormant Commerce Clause's extraterritoriality doctrine.

Our appellate team combines deep knowledge of our clients' industries and substantive law with a well-earned reputation for excellence in appellate advocacy. We help clients win cases and work with them strategically to help influence the long-term development of relevant law affecting their businesses. We appear in the US Supreme Court, as well as every federal Circuit Court of Appeals and numerous state appellate courts, arguing a wide spectrum of legal issues, ranging from discrete matters to high-stakes disputes and precedent-setting cases.

• BNSF Ry. Co. v. Loos, 586 U.S. 310 (2019). Successfully convinced the Supreme Court that an employee’s lost wages award for a workplace injury was taxable "compensation" within the meaning of railroad and tax statutes.
• Hughes v. Talen Energy Marketing, 578 U.S. 150 (2016). Established in the Supreme Court that the Federal Power Act preempts state price subsidy schemes that supplanted FERC-approved prices for electricity generation.
• Thomas v. Nugent, 572 U.S. 1111 (2014). Obtained vacatur of Fifth Circuit decision that granted qualified immunity to police officer amid allegations of extreme force.
• Successfully represented hard rock mineral mining company as intervenor in support of Department of Interior regulations governing location of millsite claims in support of mining at the DC Circuit. The Circuit Court upheld the regulations under the Mining Law of 1870.
• Successfully represented leading pesticide manufacturers as amicus in Third Circuit decision holding that state failure-to-warn claims were preempted by federal pesticide laws with respect to EPA's determination that glyphosate-based pesticides were not required to carry cancer warning on label.
• In re Black Elk Energy Offshore Operations, LLC, 114 F.4th 343 (5th Cir. 2024). Secured affirmance of $10.3 million summary judgment entered by bankruptcy court on bankruptcy trustee's fraudulent transfer claim against subsequent transferee.
• Nessel v. Enbridge, 104 F. 4th 958 (6th 2024). Represented pipeline operator in efforts by state officials to shut down 654-mile pipeline and defended district court's order denying remand to state court.
• Successfully represented government contractor in Federal Circuit in securing vacatur of agency determination that contractor had an organizational conflict of interest that would have barred contractor from participating in later bidding.
• Successfully represented victim of alleged foreign government-sponsored hacking scheme in appeal by foreign country's US-based agents of foreign country to DC Circuit, which held the US-based co-conspirators were not entitled to common law foreign immunity.
• City of East St. Louis, III. v. Netflix, Inc. et al., 83 F.4th 1066 (7th Cir. 2023). Successfully defended wireless pay-television provider in a series of nationwide lawsuits from municipalities seeking fees from over-the-top streaming services under state cable franchising laws
• Merritts v. Richards, 62 F.4th 764 (3d Cir. 2023). Secured a reversal of district court's dismissal of condemnation alleging violations of federal and state law.
• Jesse v. Dakota, Minnesota & Eastern R.R. Corp., 43 F.3d 861 (8th Cir. 2022). Successfully defended railroad in fatal grade crossing dispute based on federal pre-emption theories.
• Griffioen v. Cedar Rapids and Iowa City Ry. Co., 914 N.W. 273 (2018). Convinced Iowa Supreme Court to dismiss putative class action alleging over $6 billion in damages due to flooding purportedly caused by railroad operations.
• ACS Primary Care Physicians Southwest, PA and Emergency Services of Texas, PA v. Molina Healthcare of Texas, Inc. (Tx. App. 2024). Served as co-counsel in securing complete appellate reversal of trial court judgment on various causes of action against health insurer based on alleged underpayment for emergency room physician services.
• Virtual Integrated Analytic Solutions, Inc. v. Formicola (Tx. App. 2024). Secured appellate reversal of trial court denial of special appearance challenging personal jurisdiction over non-resident defendant alleged to have conspired in theft of trade secrets from Texas company.

Our ERISA team has litigated cases in federal courts throughout the United States, at both the trial and appellate levels, in matters ranging from routine benefit claim disputes to the most significant and complex ERISA matters involving fiduciary responsibility, prohibited transactions, retiree medical obligations, commercial transactions, and ERISA's preemption of state law. Our clients in these matters come from all segments of the employee benefit community, including Fortune 100 companies, major insurance carriers, plan fiduciaries, investment advisors, and service providers to both pension and health benefit plans. In addition, the ERISA litigation team regularly represents clients in investigations conducted by the Department of Labor and other regulatory agencies. Representative matters include:

• From the very inception of ERISA employer stock drop litigation, we have been a leader in the defense of these matters. The firm has had lead defense roles in such high-profile cases as Tittle v. Enron Corp.(In re Enron Corp. Sec. Derivative & ERISA Litig.), In re Dynegy, Inc. ERISA Litigation, In re Williams Companies ERISA Litigation, and In re Qwest Savings and Retirement Plan Litigation, and have defended class actions raising these issues in the energy, automotive, retail, and financial services industries.
• Whitley v. BP, P.L.C., 838 F.3d 523 (5th Cir. 2016). Successfully secured the first precedential appellate opinion to address the legal standards for employer stock drop claims based on alleged inside information following the Supreme Court’s decisions in Dudenhoeffer and Amgen. The Fifth Circuit held that plaintiffs’ putative class action complaint seeking to recover plan losses on employer stock following the 2010 Gulf Oil spill failed to state a viable ERISA employer stock drop claim.
• In re Express Scripts/Anthem ERISA Litigation, Case No. 1:16-CV-03399-ER (S.D.N.Y.). Secured dismissal of action against the nation's largest PBM, in a putative class action brought against it and Anthem, Inc., alleging ERISA fiduciary breach and prohibited transaction, RICO, breach of contract, Affordable Care Act, and other claims.
• Houssain v. Chenault, et al., Case No. 1:15-cv-08184 (S.D.N.Y. 2017). Obtained dismissal of an ERISA employer stock drop putative class action originally filed against American Express and certain alleged fiduciaries of its retirement savings plan alleging breach of ERISA fiduciary duty in connection with the plan’s holding of American Express stock.
• Soehnlen v. Fleet Owners Insurance Fund, 844 F.3d 576 (6th Cir. 2016). Secured decision from the Sixth Circuit affirming dismissal of putative class action asserting ERISA, LMRA and state law breach of contract law claims against multiemployer welfare plan and its trustees based on alleged violations of the Affordable Care Act.
• Skin Pathology Associates, Inc. v. Morgan Stanley & Co., Inc., 27 F. Supp. 3d (S.D.N.Y. 2014). Obtained dismissal of putative class action brought by a 401(k) plan fiduciary alleging participation as a "party in interest" in a prohibited transaction in connection with the plan’s acquisition of a third party's bundled investment/recordkeeping program.
• Fox v. McCormick, 20 F. Supp 3d 133 (D.D.C. 2013). Obtained dismissal of putative class action brought against the trustees of a national Taft-Hartley pension plan alleging breach of fiduciary duty and prohibited transactions.

Our attorneys regularly advise clients in connection with collective bargaining issues, representing them in contractual fact-finding and arbitration proceedings, acting on their behalf in improper practice proceedings before the New York State Public Employment Relations Board and the New York City Board of Collective Bargaining and counselling them on internal governance matters. Our Public Sector Labor team also guides clients in the pursuit of labor law reform and the impact of federal, state and city anti-discrimination provisions. In addition, we regularly represent some of New York’s largest public sector unions in disputes before courts, administrative tribunals, and arbitration panels, as well as at the bargaining table with a focus on integrated, yet tailored, solutions for complex matters that draw upon our broad spectrum of knowledge.  Our team also serves as lead counsel to many union welfare benefit funds and retirement plans, which administer hundreds of millions of dollars in benefits, in connection with collective bargaining, operational and regulatory compliance and fiduciary duty matters. 

• Representing a new union of legislative employees in its historic effort to organize employees of the New York City Council, successfully forming the largest union of legislative employees in the country.
• Representing the statutorily-mandated coalition of municipal unions covering almost 400,000 New York City employees in the negotiation of citywide health benefits.
• Guided the public sector New York City unions through every stage of the COVID pandemic.
• Represented administrators in community based-publicly funded early education programs, who are predominantly women of color, in seeking pay parity with their less diverse district counterparts.
• Defended unions from a coordinated effort to defund them by seeking retroactive recovery of agency fees in the wake of the Supreme Court’s decision in the Janus
• Representing one of the City's largest municipal unions in contract arbitrations and related mediation and administrative proceedings.
• Successfully represented one of New York City’s largest unions in challenging significant budgetary cuts to the New York City Department of Education and seeking to compel the restoration of funds for education under two separate provisions of New York State law.
• Successfully representing a coalition of unions, community groups, parents and elected officials in challenging the improper closure of schools in violation of provisions of the State Education law.
• Successfully represented a class of some 48,000 current and former public employees and their unions challenging systemic inaccuracies in the calculation of pension benefits amounting to more than $160 million over the course of decades.
• Successfully representing a municipal union in its contract arbitration seeking to enforce contractual workplace assignment seniority rules in the context of the unprecedented influx of demoted long-time managerial staff.