Washington Strategic Government Relations & Counseling

We closely monitor agency activity for changes that could impact our clients, including proposed regulations, compliance, and enforcement initiatives. We are in regular contact with federal agencies and have deep relationships with key agency decisionmakers in Washington, DC. We also have longstanding working relationships with national trade associations and other groups that represent clients affected by current or proposed regulations or agency priorities. Our technical proficiency, experience with the Administrative Procedures Act (APA), and ability to strategically draw upon our network of stakeholder groups allows us to effectively advise on the regulatory notice-and-comment process, and to help prepare persuasive comments.

We understand that by the time a proposed rule is published for comment, the die may be cast. Our lawyers help clients keep their “antennae up” about forthcoming rules so that a case for or against a proposed change can be made before publication. While having formal APA comments taken to heart by an agency or the Office of Management and Budget (OMB) can have strong impact, it can be more advantageous to provide input on whether a change should be proposed in the first place, and if so, what format it should take.

We advise clients on avenues for advocating positions within agencies at each step of the administrative process, drawing on our inside-the-Beltway relationships and the team’s individual and collective government experience. We regularly advise clients on the following: 

• Securing meetings with agency decisionmakers before a formal proposal is published
• Filing comments, including assessing the pros and cons of commenting and whether to file comments individually or through a trade association or other industry group
• Seeking agency interpretive guidance
• Assessing whether to participate in a voluntary compliance program
• Obtaining meetings with OMB through its Office of Information and Regulatory Affairs

We advise clients on a diverse range of legislative matters, including in the areas of healthcare, immigration and immigration compliance, energy, environment, trade, taxes, financial services, labor and employment, employee benefits, and transportation. In addition to tracking legislative developments on these various issues, we assist clients to “see around the corner” for developments in cutting-edge technologies and initiatives such as fintech, the “gig economy,” robotics and autonomous vehicles, privacy and data protection, and global trade, among others. We counsel clients on congressional investigations and oversight, preparation of written testimony, and appropriate responses to legislative initiatives.

Our lawyers represent clients through all stages of agency administrative proceedings—from day one of a government investigation through the administrative appeals process. Our experience includes guiding clients through agency investigations of company practices to provide solutions and resolutions that avoid litigation. Sometimes litigation is unavoidable, but with highly regulated clients, pursuing administrative relief is often a necessary prerequisite to accessing the federal court system. Our team is proficient at navigating the breadth and depth of federal administrative proceedings, which can vary considerably from agency to agency—and even within an agency. We regularly litigate before administrative law judges, and members of our team with government experience give an insider’s perspective—and draw upon the substantive experience of lawyers throughout the firm—to smooth each client’s journey through this sometimes-opaque system.

Our team has experience litigating administrative decisions in federal court, both after exhaustion of administrative proceedings and in direct actions that challenge administrative decisions. We have challenged and successfully resolved agency rulemakings as well as agency final action as arbitrary and capricious under the APA, the Occupational Safety and Health Act, and the Environmental Protection Act. We have government experience in writing rules and advising agency leaderships on the legal defensibility of positions taken in rulemaking, and have also worked with the US Department of Justice to defend rule challenges all the way to the US Supreme Court. We counsel on the strengths and weaknesses of final rules and the optimal strategies and legal arguments to get results. We have also successfully challenged agency guidance documents that impose substantive requirements for failing to follow the APA’s procedural requirements.

Our ability to help our clients does not stop at the Potomac River. Each of the 50 states and the District of Columbia have their own unique views, requirements, and goals, which they express in the work of their attorneys general, agencies, and legislatures. Members of our team have experience addressing these myriad requirements. Our lawyers include a former (1) state insurance regulator, (2) commissioner for a state commission against discrimination, (3) commissioner for a state fair employment and housing commission, (4) senior deputy in a state attorney general’s office, and (5) senior deputy legal affairs secretary to a governor. These lawyers have led our clients through numerous state approval processes for mergers and acquisitions, new product launches, and licensure, among others. We also have represented our clients in negotiating with state regulators and attorneys general in investigative, enforcement, and other contested matters. In addition, Morgan Lewis lawyers have written and shepherded through enactment a broad range of legislation helping our clients to achieve their goals and improving the laws for all.

Advocacy

• Advised a range of corporate contributing employers on US Congress efforts to address the multiemployer pension crisis, which involved helping prepare two reports on the crisis for a national business association, including a primer that has been widely distributed to congressional offices and committee staff
• Provided government relations counseling to the trade association representing the largest US manufacturing sector—equipment suppliers to the auto and trucking industry—on a range of legislative issues, including trade, infrastructure, autonomous vehicles, and the environment
• Provided government relations representation to one of the nation’s largest children’s hospitals, helping to educate congressional offices on unique health policy, Medicaid, global health, financial, and operational challenges

Rulemaking

• Advised clients on the US Department of Education’s 2019 proposed amendments to the regulations implementing Title IX, and led a coalition of education and healthcare institutions’ comments on the proposed regulations to convey constructive feedback to the department
• Advised clients on the impact of various rapidly implemented immigration executive orders, including the Travel Ban and “Buy American Hire American”
• Analyzed and drafted comments for multiple hospitals and health systems regarding rulemaking for the Medicare overpayment regulations
• Coordinated and drafted an industry comment letter and assisted individual firms with comment letters responding to the DOL’s proposed “fiduciary rule” regulations, among other matters
• Served as counsel to an industry trade association through various stages of Occupational Safety and Health Administration (OSHA) Process Safety Management (PSM) rulemaking and former President Barack Obama’s executive order on chemical plant safety
• Guided an industry trade association through OSHA’s lengthy rulemaking on crystalline silica, including helping to develop oral and written comments targeting subjects critical to the glass packaging industry to effect change and allow flexibility in key areas of the industry
• Represented a national business association in developing comments in the OSHA Hazard Communication/GHS rulemaking and assisted in follow-up advocacy with OSHA, the White House Domestic Policy Council, and Office of Management and Budget
• Represented a global agricultural equipment manufacturer in advocacy for regulations to protect GPS signals vital to the onboard navigation systems in all modern agricultural, construction, forestry, and mining equipment from efforts to convert certain spectrum for use by wireless broadband companies, which could hinder the operation of high-precision GPS navigation technology equipment
• Represented California’s largest competitive telecommunications carrier in connection with regulatory reform of the intercarrier compensation system, which significantly impacts the costs and revenues incurred by local telephone companies from communications traffic with other carriers, and in an appeal of the Federal Communication Commission’s (FCC’s) seminal order on intercarrier compensation and universal service funding
• Represented California’s largest competitive telecommunications carrier in connection with enforcement and regulatory reform of the FCC’s universal service contribution system, which impacts customers who make contributions into a fund to support broadband deployment and other universal service goals
• Represented the Structured Finance Industry Group—the securitization market’s trade association—and other financial industry groups in their responses to regulatory changes in the structured finance area since the financial crisis, including Regulation AB II and Dodd-Frank

Litigation Before Administrative Agencies and Federal Courts

• Represented 12 of the largest US children’s hospitals in securing a Medicaid reimbursement litigation win in multiple district courts and several courts of appeals regarding the government’s improper promulgation of a Medicaid policy and pursuit of informal guidance as policy, which had denied the hospitals and others of millions in Medicaid funding
• Represented a large hospital system in federal court on appeal from the Provider Reimbursement Review Board challenging agency action related to reimbursement to the hospital
• Represented a large hospital in a novel case involving certain capital cost transition payments during a period of changing reimbursement systems, which involved the interpretation of the Centers for Medicare and Medicaid Service’s own regulations under APA principles
• Counseled an energy company on pipeline right-of-way approvals from the Bureau of Land Management and the US Forest Service
• Represented a major US technology company in a state attorney general multistate investigation of the company’s adherence to its privacy and data security policies
• Represented numerous employers across various industries in US Department of Labor (DOL) investigations and audits related to wage and hour, OSHA, and the Office of Federal Contract Compliance Programs
• Represented multiple retirement plan sponsors across numerous industries in DOL investigations related to deferred vested lost and missing participants and whether plans had adequately searched for such individuals, which included responding to DOL document and written requests, preparing for interviews and depositions, and developing a strategy to minimize potential liability
• Represented various employers, including major technology and social media companies, in IRS payroll audits related to the subsidized and complimentary meals and snacks provided in the workplace
• Represented numerous clients in federal court challenges to H-1B visa denials for key employees
• Represented employers in investigations and other actions before the US Department of Justice's Immigrant and Employee Rights section
• Counseled in an administrative hearing defending a chemical company against enforcement action seeking millions of dollars in civil penalties for failing to report under the Toxic Substances Control Act
• Counseled two Arizona cities and a group of business owners in challenging a Forest Service decision to construct a hotel, office, and shopping complex near an entrance to Grand Canyon National Park
• Represented the American Chemistry Council and National Association of Chemical Distributors in a significant legal challenge before the US Court of Appeals for the DC Circuit involving a broadening of the PSM standard that would include hydrochloric acid in aqueous solutions as a “highly hazardous chemical,” which could have cost the industry billions of dollars
• Filed an amicus brief with the US Court of Appeals for the Fifth Circuit on behalf of fuel and petrochemical clients in the Delek Refining appeal related to an OSHA citation involving important PSM provisions such as the statute of limitations on process hazard analyses (PHAs)