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In Law360, Washington Attorneys Examine U.S. Supreme Court Kisor Case for Challenges to FDA Actions

Practices: FDA Regulatory, Litigation, Administrative Litigation, Appellate & Supreme Court

A Law360 article published on Dec. 2 examines the potential impact of the U.S. Supreme Court’s decision in Kisor v. Wilkie, with particular emphasis on the effect on firms regulated by the U.S. Food and Drug Administration and other agencies that rely heavily on scientific and technical expertise.

The Kisor opinion provides heavily regulated entities with more ways to argue that administrative agencies should not be able to invoke Auer deference, particularly when challenges bring certain Administrative Procedure Act claims. Kisor could also signal additional, future challenges to other key doctrines, including Chevron deference.

In addition to examining the Kisor opinion, the article discusses early applications of Kisor, noting that Kisor has already begun to shift how courts determine when it is appropriate to defer to agency expertise.

The article was co-authored by life sciences counsel Beth Weinman, appellate & Supreme Court partner Doug Hallward-Driemeier, life sciences partner Greg Levine, litigation & enforcement associate Emerson Siegle and life sciences associate Rebecca Williams (all of Washington, D.C.).

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