Page 23 - The American Lawyer Trailblazers - South 2022

Washington, D.C.

Matthew R. Nicely

Akin Gump Strauss Hauer & Feld

What was the genesis of the idea/path that has made you a trailblazer?
Under Article I of the U.S. Constitution, the power to regulate commerce with foreign nations resides with the
Congress. During the last several years, the executive branch of the U.S. government has undertaken an aggres-
sive approach to restricting U.S. imports, and in doing so has adopted policies that my colleagues and I believe
exceed the authority granted by the Congress to the executive branch or violate the Administrative Procedures
Act. Our clients agreed with our legal theory and instructed us to file lawsuits in federal court challenging various
trade policy initiatives.

What sort of change has resulted from the concept?
While some of our lawsuits are still pending, they have already broken new ground. The Department of Justice
sought to limit the courts’ jurisdiction to review executive branch decisions in this space, but so far the courts have
rejected that stance and allowed the cases to proceed. Also, our lawsuit challenging the Trump administration’s
Section 301 duties on most imports from China was followed by over 4,000 additional suits filed for over 6,000
plaintiffs by hundreds of law firms, each of which copied our complaint. This is by far the biggest piece of litigation
the U.S. Court of International Trade has ever seen, and if successful would result in refunds of billions of dollars of
unlawfully collected duties.
What bearing will this have on the future?
Ideally, these lawsuits will ensure the executive branch is more careful in the future when adopting trade policies
that impose increased duties or otherwise restrict U.S. imports. I also hope the cases heighten awareness among
policymakers and the public about the crucial role imports play in our economy and the unnecessary inflationary
impact these tariffs have had on U.S. businesses and consumers.

Jane Norberg

Arnold & Porter

What was the genesis of the idea/path that has made you a trailblazer?
I was the Chief of the Office of the Whistleblower at the Securities and Exchange Commission (SEC). I helped
develop and lead the program, first as Deputy Chief and then as Chief. When the doors were first opened to
whistleblowers in 2011, we were uncertain if the program would be successful and whether whistleblowers would
be willing to report information. During my tenure, I saw a seismic shift in the number of people willing to come
forward and report a possible violation of law. Fast forward to today and the program is one of the most successful
monetary incentive programs in the government.
What sort of change has resulted from the concept?
I believe the success of the SEC’s whistleblower program has made whistleblowing more prevalent and accepted
than ever and, in turn, made companies more aware of the impact that whistleblowers have on detecting internal
compliance issues. Companies have had to improve internal reporting mechanisms and anti-retaliation policies in
order for employees to feel comfortable reporting internally to the company rather than out to the SEC. This gives
the company the important ability to proactively investigate and remediate an issue raised internally, rather than
reacting to an SEC investigation.

What bearing will this have on the future?
Whistleblowers are here to stay and I believe many companies recognize that strong whistleblower mechanisms are
good for the company, the employees, and the shareholders. With many investors focused on Environmental, Social,
and Governance (ESG) issues, how a company interacts with its workforce can impact the long-term sustainability of
the company. Working at an organization where employees feel heard and can raise compliance concerns without
fear of reprisals results in a happier workforce and supports the “social” aspects of a good ESG profile for a company.

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