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Eric Gotting serves as a partner in the firm’s litigation and environmental practice groups specializing in complex civil and appellate matters, as well as internal investigations and regulatory compliance. He focuses on a broad range of legal issues, including administrative law, agency enforcement actions, toxic torts, product liability, general business litigation, and regulatory compliance. He works with a diverse set of industries, including chemicals, plastics, pesticides, fuels/pipeline, food/packaging, consumer goods, telecommunications, and e-cigarettes/e-liquids. Mr. Gotting joined Keller and Heckman in 2011, and is a former Am Law 50 litigation partner and U.S. Department of Justice trial attorney.

Litigation and Regulatory Compliance Experience

Mr. Gotting has handled cases across the country, having tried matters to verdict and argued appeals before federal and state appellate courts. His experience includes class actions, mass tort litigation, administrative law, and agency proceedings. Between 1999 and 2004, Mr. Gotting took leave from private practice and served as a trial attorney with the U.S. Department of Justice’s Civil Division, Environmental Torts Section, where he defended the federal government in multimillion dollar toxic tort cases filed under the Federal Tort Claims Act.

Administrative Law

Mr. Gotting has litigated and counseled clients on challenges to federal and state statutes, regulations, and orders. His experience covers various constitutional and administrative law issues, including the Administrative Procedure Act (APA) and state equivalents, the Dormant Commerce Clause, the First Amendment, the Due Process Clause, federal preemption, and the Freedom of Information Act (FOIA). He also has filed amicus briefs in litigation involving significant regulatory issues facing a variety of industrial sectors. As part of recent efforts by Congress to reform the Toxic Substances Control Act (TSCA), Mr. Gotting provided chemical manufacturers with extensive advice regarding preemption issues and co-authored two American Bar Association “white papers” on federal/state relations.

Enforcement Actions, Internal Investigations, and Regulatory Compliance

Mr. Gotting has defended enforcement actions and provided regulatory compliance counseling in a number of areas, including chemical and pesticide control, hazardous waste, pipeline safety, the Clean Air Act, the Clean Water Act, occupational safety and health, Superfund cost-recovery actions, insurance coverage disputes, the Food, Drug and Cosmetic Act, and the Chemical Weapons Convention.

Mr. Gotting also has conducted extensive internal corporate investigations regarding potential regulatory compliance and litigation-related liabilities, including toxic torts, product liability, consumer fraud, and commercial contract disputes.

Recently, Mr. Gotting has advised clients on several emerging issues, including e-vapor products, nanotechnology, hydraulic fracturing, the Securities and Exchange Commission’s conflict minerals reporting rule, Green Chemistry laws, the regulation of genetically-modified organisms (GMOs), the Globally Harmonized System amendment to OSHA’s HazCom Standard, and coal ash.

Toxic Torts

Mr. Gotting has extensive experience litigating toxic tort cases involving claims of personal injuries and property damage from alleged exposures to materials such as volatile and semi-volatile compounds, specialty chemicals, pesticides, gasoline, radioactive waste, and heavy metals. He has defended claims involving the entire range of environmental media, including drinking water, soil, groundwater, and air contamination. He has worked with, and defended against, experts in numerous scientific and business-related fields, including toxicology, geochemistry, hydrogeology, structural engineering, neuropsychology, health physics, survey techniques, statistics, real estate appraisal, and environmental remediation.

Activities

Mr. Gotting currently serves on the firm’s Marketing Committee and Pro Bono Committee. He also served on the King Farm Citizen Assembly’s External Affairs Committee in 2005 through 2009. He has provided various pro bono legal services throughout his career, working with groups such as the Legal Counsel for the Elderly and serving as an appointed attorney in federal habeas cases.

On September 11, 2018, Nicopure Labs, LLC and the Right to be Smoke-Free Coalition (the “Appellants”) appeared for oral argument before a three-judge panel in the United States Court of Appeals for the District of Columbia Circuit to appeal a decision issued last year by the U.S. District Court for the District of Columbia, which ruled in favor of the U.S. Food and Drug Administration (“FDA”) in the first lawsuit challenging various provisions of the Family Smoking Prevention and Tobacco Control Act (“TCA” or “Act”) and the FDA’s Deeming Rule as they are being applied to the vapor industry. During oral argument, the Appellants argued that the Modified Risk Tobacco Product (“MRTP”) preclearance requirement imposed by Section 911 of the TCA violates the First Amendment as applied to e-cigarettes and other vapor products. In addition, the Appellants argued that application of the Act’s free sample ban to vapor products violates the First Amendment, and that FDA failed to tailor the premarket tobacco application (“PMTA”) requirements to ensure the continued availability of vapor products. Below, we provide a brief overview of the issues discussed at the oral argument. The recording of the hearing is available here. For background on the appeal, see our previous blog posts, including copies of the legal briefs, available here and here.
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Defendant U.S. Food and Drug Administration (FDA) and the Right to Be Smoke-Free Coalition (RSF) recently submitted briefs to the federal district court of Maryland opposing a motion for summary judgment filed by various public health NGOs in American Academy of Pediatrics v. FDA.[1] The NGOs are challenging various extensions to premarket application

On March 27, 2018, a coalition of public health organizations including the Campaign for Tobacco-Free Kids, the Truth Initiative, the American Cancer Society and the American Academy of Pediatrics, among others, as well as several individual physicians (collectively the “NGOs”) filed a lawsuit in the United States District Court for the District of Maryland challenging

On May 2, 2018, the U.S. Food and Drug Administration (FDA) filed its brief in response to Appellants Nicopure and Right to be Smoke-Free Coalition’s appeal in the lawsuit challenging aspects of the Tobacco Control Act (TCA) and the Deeming Rule now pending before the U.S. Court of Appeals for the D.C. Circuit. FDA’s brief

On February 20, 2018 several organizations filed amicus (“friend of the court”) briefs in support of Plaintiff-Appellants Nicopure Labs’ and the Right to be Smoke-Free Coalition’s appeal in the Deeming Rule challenge now pending in the U.S. Court of Appeals for the D.C. Circuit.

The Washington Legal Foundation (WLF) is a nonprofit, public-interest law firm

On February 12, 2018, Nicopure Labs, LLC and the Right to be Smoke-Free Coalition[i] (the Appellants) filed their opening brief in the appeal of last year’s decision from the U.S. District Court for the District of Columbia, which ruled in favor of FDA in the first lawsuit challenging aspects of the Tobacco Control Act

On August 30, 2017, the Right to be Smoke-Free (RSF) Coalition, a non-profit, industry-led trade association of vapor businesses dedicated to advocating for reasonable and responsible laws and regulations, joined Nicopure Labs LLC in appealing the recent decision in Nicopure Labs, LLC and Right to be Smoke-Free Coalition et al. v. Food and Drug

Although we are still waiting for an official announcement, FDA’s Stakeholder Relations Office recently indicated that the Agency will be delaying enforcement of all future Deeming Regulation compliance deadlines set for May 10, 2017 or later, including those for manufacturer submission of cigar warning label plans, registration and listing, ingredient listing, health documents, substantial equivalence