Leading DC Firms Play Long Game in Life After Chevron Ruling

Some prominent DC-based law firms known for fighting government red tape have so far stayed out of a rush of new regulatory challenges after the Supreme Court scaled back agencies’ power.

More than 40 federal lawsuits citing the high court’s ruling in Loper Bright Enterprises v. Raimondo have been filed in the two-plus months since the decision. The suits—including those targeting firearm regulations, COVID-era loan programs, and Health and Human Services Department rules—show the wide range of court battles already prompted by the ruling.

Law firms with roots outside of DC’s legal establishment have captured the bulk of that new business. But a pair of local heavyweights, Covington & Burling and WilmerHale, say they expect the Loper Bright ruling to be at the center of their work for major clients going forward.

“The big cases with the big firms are coming,” said Kevin King, co-chair of Covington’s government litigation group.

“The businesses and trade associations in DC are actively thinking about the effect of Loper Bright in combination with other Supreme Court decisions and how to deploy those new tools,” King said. “They are being deliberate about it.”

The century-old Covington is a major player in the nation’s capital, having advised the likes of Microsoft Corp., Eli Lilly & Co., and BP America, Inc. It has more than 120 former regulatory and enforcement officials on its roster, including former attorney general Eric Holder, according to the firm.

King predicts the “fruits” of such deliberation will manifest next year. That’s when a new president enters the White House, bringing a fresh set of regulatory targets.

“It’s unclear how many major regulations we can expect to see this year from Biden administration,” King said. “When there’s a new administration in January, you can bet they will move on some big-ticket items, and when they do, you can bet there will be litigation on those big-ticket items.”

Early Birds

The justices said in Loper Bright that judges should interpret vague statutes, rather than defer to agencies’ interpretations. The decision overturned a decades-old precedent—commonly referred to as Chevron deference—and opened agencies to a slew of new court challenges over regulation.

Federal agencies have been on the losing end of several decisions in lawsuits challenging rules in since the June 28 high court ruling. Lawyers from a wide range of firms, many with outposts in the capital city, also have filed new challenges in the aftermath of Loper Bright, getting a head start of DC’s native government litigation practices.

Alabama-based Bradley Arant Boult Cummings brought two challenges against firearm regulators over gun ownership rules. Philadelphia’s Ballard Spahr brought a challenge against the Small Business Administration over its client’s exclusion from a Covid-era loan program. Chicago’s Mayer Brown is representing a Kuwaiti military contractor excluded from a contract renewal by the Defense Department.

Mayer Brown, a large firm whose clients include several banks, is pushing to position itself as a leading advocate for the financial services industry fighting regulations in Washington.

It’s not alone.

Paul Hastings, another large firm with close ties to the financial sector, is leading a lawsuit challenging a Consumer Financial Protection Bureau’s investigation of a lease-to-own business. The suit, which cites Loper Bright, questions the CFPB’s authority to investigate the business.

And then there’s Gibson Dunn, the elite corporate law firm founded in California. The firm has become a go-to advocate for companies challenging regulation under partner Eugene Scalia, the former labor secretary and son of late Supreme Court Justice Antonin Scalia. It’s taken on several cases challenging Securities and Exchange Commission rules for financial services clients.

Many ‘Battlefields’

WilmerHale is another major firm with deep roots inside the Beltway that so far has abstained from bringing new Loper Bright challenges. Like Covington, it has an extensive bench of attorneys who focus on regulation fights.

The decision factors “prominently” into several ongoing and future administrative law matters at the firm, according to Kelly Dunbar, one of the leaders of its administrative law group.

“The are a number of battlefields, so to speak, for litigation and administrative law over the next couple years,” Dunbar said. “We organized ourselves into sub-working groups on the theory that the implications of the decisions could be different in different industry sectors.”

WilmerHale is the product of a 2004 merger between DC’s Wilmer Cutler & Pickering and Boston’s Hale and Dorr. The firm has advised clients ranging from Apple Inc. to Norfolk Southern Corp. Its partners include ex-solicitor general Seth Waxman and former deputy attorney general David Ogden.

Capturing Client Demand

Big Law firms, many of which anticipated the decision, created new task forces to address increasing client demand after the ruling.

Some have sought to establish themselves as “thought leaders” in the post-Chevron era, said DC-area legal recruiter Stuart TenHoor.

Sidley Austin launched a regulatory litigation practice in 2023. WilmerHale, in the immediate aftermath of the Loper Bright ruling, organized lawyers into industry-focused working groups. Morgan Lewis & Bockius rolled out a 20-lawyer “Chevron Task Force” following steady hiring out of government agencies over the last two years.

“I do feel that our hires out of agencies gives us an advantage,” said Bryan Killian, an appellate partner at Morgan Lewis. “Knowing the enforcement personnel gives us a strong possibility to be helpful in the aftermath of Loper Bright.”

The groups are largely tools for organizing firms’ work on matters stemming from Loper Bright, TenHoor said.

“They already have people who they can put forward in this area as experts,” he said. “They are collating responses they are getting from potential clients and working to fill holes.”

Firms that historically don’t have a robust regulatory litigation practice are unlikely to step into the arena simply because of Loper Bright, TenHoor said. Those already playing in the space are likely to try to build out their rosters.

“There will be more opportunistic hires than strategic hires in this field,” he said. “If a good candidate shows up with these skills, this will be good reason to hire them, but the fundamentals still apply: Are they high enough up at the agency to get our attention?”

Justine Donahue, a DC-based partner at legal recruiting firm Macrae, said the city’s most prominent government firms likely have a full bench of ex-federal agency lawyers. That means there’s opportunity for Wall Street firms and others to fill out their benches.

“There’s big opportunity for them to get titled counsel coming out of agencies that already fit with their profile,” she said.