WilmerHale’s Government and Regulatory Litigation Group combines the firm’s substantive regulatory capabilities and its familiarity with litigation involving the government and regulatory organizations to handle disputes in which clients’ interests intersect with government, regulatory and public policy issues. Our lawyers routinely manage litigation across a range of disciplines, including administrative, antitrust and cartel enforcement, arts and antiquities, communications, constitutional and preemption challenges, cybersecurity and privacy, defense and national security, anti-discrimination, education, energy and environment, False Claims Act, consumer financial services, government contracting, intellectual property, healthcare, technology, transportation, and international law.

We defend against major government enforcement actions and civil litigation brought by private parties under regulatory statutes, and develop affirmative strategies to align the legal landscape with our clients’ business objectives, which may involve bringing litigation, engaging in negotiations or pursuing legislative options. We resolve potentially large-scale litigation at the motion to dismiss or summary judgment stage, obtain advantageous early settlements, and have a strong record of successfully litigating matters through trial when necessary.

Our lawyers have served in senior government positions in the Department of Justice (DOJ)—the primary litigation arm of the United States—and the US Securities and Exchange Commission (SEC). The team includes:

• two former Deputy Attorneys General of the United States (the second-highest position in the DOJ);
• two former Acting Deputy Attorneys General, a former Principal Associate Deputy Attorney General, two counselors to the Attorney General, and three Associate Deputy Attorneys General, as well as other senior officials in the office of the Attorney General and Deputy Attorney General, including a former Chief of Staff to the Attorney General;
• a former US Solicitor General, a former Deputy Solicitor General, and an Assistant to the Solicitor General;
• a former Assistant Attorney General in charge of the Civil Division, and a former Deputy Assistant Attorney General in the Civil Division (Appellate Branch);
• two former Deputy Assistant Attorneys General in the Office of Legal Counsel;
• four former US Attorneys, a former Chief of Staff and Deputy Attorney General for New York, a former Deputy Senior Counsel for Alternative Dispute Resolution, and a former State Attorney General;
• a former General Counsel to the Federal Bureau of Investigation;
• 20 former Assistant US Attorneys and other former Justice Department litigators, with experience in the Antitrust, Civil, Criminal, National Security, and Environment and Natural Resources Divisions;
• a former Director and a former Associate Director of the SEC’s Division of Enforcement;
• a former SEC General Counsel and a former Chief Litigation Counsel with the SEC’s Division of Enforcement.

The above-noted individuals, among many others who have held senior government positions, are supported by a team of lawyers and public policy professionals with experience that spans more than a dozen federal agencies.

Government Litigation

We routinely handle litigation against, with or for the government in a variety of contexts, including

• constitutional and preemption challenges to legislation;
• challenges to agency action under the Administrative Procedure Act;
• regulatory enforcement actions;
• False Claims Act litigation;
• government contract litigation; and
• international litigation involving the United States or foreign governmental institutions.

A successful government litigation strategy must take into account legal doctrines applicable to litigation involving the government, including sovereign immunity, ripeness, mootness, standing, the availability of pre-enforcement relief, abstention and deference. Our lawyers have experience in the constitutional, administrative and statutory law that applies uniquely to litigation with or involving governments.

Effective representation in government litigation also requires consideration of the government's institutional interests and decision-making processes. These interests and processes often differ substantially from those of private litigants. Our experience allows us to take advantage of the opportunities presented by these distinct rules, constraints, operations and motivations. By combining the group's knowledge of the issues that arise in government litigation with the substantive capabilities of the firm's regulatory practices, we are well positioned to handle complex regulatory, administrative or constitutional litigation involving a range of governments. 

Regulatory Litigation

A host of federal statutes—including the antitrust, anti-discrimination, environmental, and fraud and racketeering laws, as well as the False Claims Act—create rights of action for private parties seeking to enforce federal regulatory regimes. Civil litigation brought pursuant to these private rights of action, including class actions, often occurs in parallel with enforcement or potential enforcement by federal regulators or prosecutors, or scrutiny from Congress, foreign governments or the press. A successful litigation strategy—whether offensive or defensive—must take account of opportunities and risks in all of these areas, building alliances where advantageous, finding ways to advance litigation objectives quickly or otherwise develop positive momentum, and developing creative solutions in a dynamic environment.

Our familiarity with the applicable regulatory programs and complex civil litigation, coupled with our experience handling criminal and civil government litigation, cross-border disputes and other high-profile legal proceedings, allows us to advance our clients' interests in litigation while maximizing their position in other venues.