In addition to providing regulatory and appellate counseling, selected litigation matters we have worked on include:
Hernandez v. Mesa, No. 17-1678 (S. Ct.): As lead counsel, filed an amicus brief in support of Petitioners on behalf of remedies scholars, arguing that the Bivens remedy rests on a common law foundation that routinely provided a damages remedy for federal officer misconduct, including in cases with cross-border and national security implications.
Emulex Corp. v. Varjabedian, No. 18-459 (S. Ct.): As lead counsel, filed an amicus brief on behalf of the North American Securities Administrators Association in support of Respondents, arguing that Section 14(e) of the Williams Act provides a remedy for shareholders harmed by negligently untruthful disclosures related to tender offers.
Soundboard Ass’n v. FTC, No. 18-722 (S. Ct.): As lead counsel, filed an amicus brief in support of Petitioner at the certiorari stage, on behalf of the Chamber of Commerce of the United States of America, arguing that the Supreme Court should grant review to resolve confusion about when the consequences of an agency's action must be considered in deciding whether the action is final.
Azar v. Allina Health Servs., No. 17-1484 (S. Ct.): As co-counsel, filed a brief on behalf of Respondents at the merits stage, arguing that the Medicare Act requires the Department of Health and Human Services to engage in notice-and-comment rulemaking before it can change the standard governing Medicare payment to hospitals for services furnished to low-income patients.
Parker Drilling Management Servs., Ltd. v. Newton, No. 18-389 (S. Ct.): As lead counsel, filed amicus briefs in support of Petitioner at the certiorari and merits stages, on behalf of the Chamber of Commerce of the United States of America, arguing that the Supreme Court should grant review and that the Outer Continental Shelf Lands Act precludes the application of California wage and hour law on the outer continental shelf.
Jam v. International Finance Corp., 139 S. Ct. 759 (2019): As counsel for 17 member countries of the Multilateral Investment Guarantee Agency, filed an amicus brief in support of Respondent, arguing that the International Organizations Immunities Act confers a broad immunity from suit in light of the Act's history, the critical and distinct purposes served by international organization immunity, and the Executive Branch’s power under the Act to adjust international organization immunity.
Emerson Elec. Co. v. Superior Ct. of Cal., Orange County, No. 17-1713 (S. Ct.): As lead counsel, filed an amicus brief in support of Petitioner, at the certiorari stage, on behalf of the Chamber of Commerce of the United States of America, arguing that the Supreme Court should grant review to resolve a split between the Ninth Circuit and the California Supreme Court regarding preemption under the Occupational Safety and Health Act.
Stokeling v. United States, 139 S. Ct. 544 (2019): As lead counsel, filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers in support of Petitioner, arguing that the Armed Career Criminal Act applies only to violent robberies.
Lucia v. SEC, 138 S. Ct. 2044 (2018): As lead counsel, filed an amicus brief in support of affirming the judgment below on behalf of the Association of Administrative Law Judges, arguing that SEC ALJs are not inferior officers, but any ruling otherwise should not control for ALJs in other agencies, and that ALJ tenure protections are constitutional
South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018): As lead counsel, filed an amicus brief in support of neither party on behalf of the National Association of Certified Service Providers and the Software & Information Industry Association, explaining that a vibrant market provides remote retailers with an array of easy and affordable software options for automatically calculating and remitting sales tax.
Spokeo, Inc. v. Robins, No. 17-806 (S. Ct.): As lead counsel, filed an amicus brief in support of Petitioner, at the certiorari stage, on behalf of the Retail Litigation Center, arguing that the Supreme Court should grant review to resolve a circuit split with respect to standing to sue for alleged statutory violations without real-world harm.
Hall v. Hall, 138 S. Ct. 1118 (2018): As lead counsel, filed an amicus brief in support of Respondents on behalf of a group of retired U.S. District Judges, arguing that partial appeals in fully-consolidated cases should be allowed only when certified by the district court.
South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018): As lead counsel, filed an amicus brief on behalf of the American Lighting Association, Home Furnishings Association, Jewelers of America, National Sporting Goods Association, and six other national trade associations in support of a petition for certiorari filed by South Dakota. The petition seeks the Supreme Court's reconsideration of Quill Corp. v. North Dakota, 504 U.S. 289 (1992), in which the Court held that States could not require out-of-state sellers with no physical presence in the state to collect sales tax.
Nies v. Town of Emerald Isle, No. 16-1305 (S. Ct.): As lead counsel, filed a successful brief in opposition to a petition for certiorari filed by the Pacific Legal Foundation. The petition claimed that public use of North Carolina beaches was a taking despite historic and long-standing public use of the beaches.
Patchak v. Zinke, 138 S. Ct. 897 (2018): As lead counsel, filed an amicus brief in support of Respondents on behalf of a group of federal courts and federal Indian law scholars, arguing that an act taking a particular parcel into trust and withdrawing jurisdiction over certain claims related to that parcel does not violate Article III and is an example of a common type of tribe-specific legislation.
Oil States Energy Servs., LLC v. Greene's Energy Group, LLC, 138 S. Ct. 1365 (2018): As lead counsel, filed an amicus brief in support of neither party on behalf of 3M Company, Bristol-Myers Squibb Co., Cargill Incorporated, Johnson & Johnson, Monsanto Company, the Procter & Gamble Company, Raytheon Company, and Shell International, arguing that patents are private rights and the patent system will not be disrupted if inter partes review is held unconstitutional.
Jesner v. Arab Bank, PLC, 138 S.Ct. 1386 (2018): As lead counsel, filed an amicus brief on behalf of former U.S. counterterrorism and national security officials, arguing in support of Petitioner that corporate liability under the Alien Tort Statute is essential to effective efforts to combat terrorist financing.
Class v. United States, 138 S. Ct. 798 (2018): Research and briefing as co-counsel for amicus brief on behalf of the National Association of Criminal Defense Lawyers and the American Civil Liberties Union in support of Petitioner, arguing that an unconditional plea does not waive the right to raise a constitutional challenge to statute of conviction on appeal.
California Public Employees' Retirement Sys. v. ANZ Securities Inc., 137 S. Ct. 2042 (2017): Lead counsel for an amicus brief on behalf of Current and Former Directors of Publicly Traded Companies in support of Petitioner, arguing that the filing of a putative class action should satisfy the three-year time limit for putative class members in certain securities class actions, because otherwise the result would be a multiplicity of actions and more litigation that increases complexity for defendants.
Endrew F. v. Douglas County School Board, 137 S. Ct. 988 (2017): As lead counsel, filed an amicus brief on behalf of AASA, the School Superintendents Association; CASE, the Council of Administrators of Special Education; and six other educational organizations in support of Respondent.
Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016): As second chair, drafted amicus brief on behalf of the National School Boards Association and six other educational organizations, arguing in support of Respondent that university-level diversity supports and reinforces school districts’ efforts to achieve diversity.
King v. Burwell, 135 S. Ct. 2480 (2015): As second chair, drafted an amicus brief supporting Respondent on behalf of a group of small business organizations, arguing that the health insurance exchanges have improved job mobility, entrepreneurial opportunity, and small-business competitiveness.
Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S. Ct. 2111 (2014): Contributed to amicus briefing at both certiorari and merits stages in support of the ultimately prevailing position that a defendant is not liable for inducing patent infringement under 35 U.S.C. § 271(b) when no one has directly infringed a patent under Section 217(a) or any other statutory provision.
United States v. Windsor, 133 S. Ct. 2675 (2013): Research, briefing, and argument support as co-counsel to court-appointed amica curiae, to present arguments against Article III jurisdiction given the party agreement between the United States and respondent.
Sprint Communications Co., L.P. v. Jacobs, 134 S. Ct. 584 (2013): Principal drafter of amicus brief supporting petitioner in the ultimately prevailing position that state regulatory proceedings to resolve legal questions under the Telecommunications Act of 1996 did not require Younger abstention.
Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013): Lead counsel and principal brief drafter of amicus brief submitted by Former Commissioners and General Counsel of the Federal Communications Commission, and the Minority Media Telecommunications Counsel, arguing that greater diversity in higher education is essential to a robust public dialogue, and that the University of Texas’s faithful adherence to Grutter’s core holding be affirmed.
Bowman v. Monsanto Co., 133 S. Ct. 1761 (2013): Principal brief drafter of amicus brief on behalf of a trade association arguing in favor of the ultimately-prevailing position that patent exhaustion did not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.
Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817 (2013): Co-counsel and principal drafter of Respondent's merits brief in case determining that the 180-day time limit for filing appeals to the Provider Reimbursement Review Board was not jurisdictional, yet also not subject to traditional equitable tolling.
Courts of Appeals
New York Stock Exchange LLC, et al. v. SEC, Nos. 19-1042, et al. (D.C. Cir.): As lead counsel, filed an amicus brief on behalf of Investors Exchange LLC (IEX) in support of the SEC, arguing that the Commission’s Transaction Fee Pilot will generate essential data, and will improve the stock market because transaction-fee rebates distort market structure.
Guardian Flight, LLC v. Godfread, Nos. 19-1343, 19-1381 (8th. Cir.): As lead counsel, filed an amicus brief on behalf of America's Health Insurance Plans, arguing in support of North Dakota officials that state insurance regulation is needed to enhance insurance providers’ ability to protect consumers from high costs for air ambulance services and is not preempted.
The Nasdaq Stock Market, LLC v. SEC, Nos. 18-1292, 18-1293 (D.C. Cir.): As lead counsel, filed an amicus brief on behalf of Investors Exchange LLC (IEX), arguing that IEX’s experience in offering market data, including the costs of providing that data, support the SEC's finding that market data pricing is not significantly constrained by competitive market forces.
Ipsen Biopharmaceuticals, Inc. v. Azar, No. 18-5299 (D.C. Cir.): As lead counsel, drafted an amicus brief on behalf of the Chamber of Commerce of the United States of America in support of Plaintiff-Appellant, arguing that agency action is final when it leaves a regulated party with a Hobson’s choice between changing its business practice to conform to the agency’s definitive legal pronouncement or risking serious penalties.
Texas v. United States, No. 19-10011 (5th Cir.): As lead counsel, drafted an amicus brief on behalf of the Small Business Majority Foundation in support of Defendants-Appellants, arguing that the Affordable Care Act's many separate and distinct reforms provide substantial benefits for small businesses, their employees, and the self-employed, by providing a means of acquiring affordable health insurance.
City of Oakland v. B.P. P.L.C., No. 18-16663 (9th Cir.): As lead counsel, drafted an amicus brief on behalf of property and tort law scholars, arguing that several cities' claims seeking equitable abatement of harms caused by the wrongful overpromotion of fossil fuels arise out of state public nuisance law and therefore should be remanded to state court.
Brackeen v. Zinke, No. 18-11479 (5th Cir.): As lead counsel, drafted an amicus brief on behalf of Casey Family Programs and thirty other organizations with expertise in child welfare, arguing that the Indian Child Welfare Act is constitutional, represents best practices in child welfare, and does not commandeer the States.
Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th. Cir. 2018): As lead counsel, drafted an amicus brief on behalf of America's Health Insurance Plans, arguing in support of Appellant West Virginia officials that consumers and health insurance providers are harmed by interpretations of the Airline Deregulation Act that include air ambulances within the Act's preemptive sweep.
Land of Lincoln Mutual Health Ins. Co. v. United States, 892 F.3d 1184 (Fed. Cir. 2018): As co-counsel, drafted an amicus brief on behalf of America's Health Insurance Plans, arguing in support of Appellant in an appeal addressing the Affordable Care Act's risk corridors program.
Allina Health Servs. v. Price, 863 F.3d 937 (D.C. Cir. 2017): Briefing and argument support as co-counsel, arguing on behalf of a group of non-profit hospitals that a Medicare rule was not validly adopted and that the Medicare Act imposes notice-and-comment requirements distinct from the APA.
Johnson v. Interstate Management LLC, 849 F.3d 1093 (D.C. Cir. 2017): Supervised briefing and presented oral argument for Georgetown University Appellate Litigation Program, appointed as amicus to argue that § 11(c) of the Occupational Health and Safety Act of 1970 contains an implied right of action for persons retaliated against for filing OSHA complaints, and (after grant of a motion for reconsideration of a partial summary affirmance) that genuine issues defeat summary judgment on the plaintiff’s EEOC retaliation claim.
Putney v. Likin, No. 14-6882 (4th Cir. July 14, 2016): Supervised briefing and presented oral argument for Georgetown University Appellate Litigation Program, and successfully obtained vacatur of the district court’s summary judgment dismissal, allowing Mr. Putney to further pursue his § 1983 action alleging that his Eighth Amendment rights were violated by prison officials’ intentional and malicious deprivation of a mattress for more than four months with no legitimate explanation.
Kelsey v. Pope, 809 F.3d 849 (6th Cir. 2016): Lead counsel for amicus brief submitted by National Association of Criminal Defense Lawyers, in support of respondent in a habeas corpus case brought under 25 U.S.C. § 1303, arguing that the Indian Tribal Court’s rewriting of its criminal code to justify its assertion of jurisdiction violated the Indian Civil Rights Act and the Ex Post Facto Clause.
EEOC v. Freeman, 778 F.3d 463 (4th Cir. 2015): As second chair, briefed a successful appeal defeating claims by the EEOC that an employer violated the anti-retaliation provisions of Title VII, the ADEA, and the ADA by requiring a release in exchange for certain post-termination benefits; argued motion for attorney's fees resulting in nearly $1 million fee award.
Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015): Supervising attorney for Georgetown University Appellate Litigation Program, which on appointment by the court, obtained reversal of a summary judgment dismissal of a procedural due process claim brought by a prisoner who had been housed in solitary confinement for twenty years. After this successful appeal, the case settled, and Mr. Incumaa was released to the general population.
Allina Health Servs. v. Sebelius, 746 F.3d 1102 (D.C. Cir. 2014): Initial drafter of briefing on behalf of non-profit hospitals in a challenge to a Medicare reimbursement rule that resulted in vacatur of the rule.
State Appellate Courts
Tennessee v. Welch (Tenn.): As lead counsel, filed an amicus brief on behalf of the Retail Litigation Center, the National Association for Shoplifting Prevention, and the Tennessee Retail Association, arguing in support of Tennessee that serial shoplifting is a serious crime and effective penalties are a critical part of a comprehensive solution.
Slotemaker v. State, No. 78665-2-I (Wash. App.): As lead counsel, filed an amicus brief on behalf of the American Civil Liberties Union of Washington, Electronic Frontier Foundation, and Washington Association of Criminal Defense Lawyers, arguing in support of Petitioner that Washington’s cyberstalking statute is overbroad and facially unconstitutional in violation of the First Amendment and Article 1, Section 5 of the Washington Constitution.
Chan Healthcare Group, PS v. Liberty Mut. Fire Ins. Co, 431 P.3d 484 (Wash. 2018): As lead counsel, filed an amicus brief on behalf of the Chamber of Commerce of the United States of America, arguing in support of Respondents that the Full Faith and Credit Clause of the Constitution bars an absent class member from relitigating whether a class representative was adequate when that issue was already adjudicated by a sister-state court when approving the class settlement.
Individual Healthcare Specialists, Inc. v. BlueCross BlueShield of Tennessee, Inc. (Tenn.): As lead counsel, filed an amicus brief on behalf of America's Health Insurance Plans, arguing in support of Appellant BlueCross BlueShield of Tennessee that health insurance providers negotiate contractual rights to modify broker and agent commissions because such flexibility is needed to address regulatory change in the health care industry.
Centex/Worthgroup, LLC v. Worthgroup Architects, L.P., 365 P.3d 37 (N.M. App. 2015): Argued a successful appeal in the New Mexico Court of Appeals in a contract dispute raising an issue of first impression under state law related to the interpretation of “flow-down” clauses in construction contracts.
Antonio v. SSA, Security, Inc., 110 A.2d 654 (Md. 2014): As lead counsel, briefed and argued statutory question of first impression certified by the Fourth Circuit about whether § 9-501 of the Maryland Security Guards Act codified the common law doctrine of respondeat superior or contemplated broader liability, in a case where homebuyers sued the security agency who employed security guards responsible for arson.