In addition to providing regulatory and appellate counseling, selected litigation matters we have worked on include:
Supreme Court
FCC v. Prometheus Radio Project, 141 S. Ct. 1150 (2021): As lead counsel, represented Respondents and argued on the merits that the Commission acted arbitrarily and capriciously in repealing most of its broadcast ownership rules without any reasoned analysis of the repeal's likely impact on ownership diversity, a long-established and important component of the public interest served by the ownership rules.
Advocate Christ Medical Center v. Becerra, No. 23-715 (S. Ct.): As lead counsel, filed a petition for certiorari arguing that the Supreme Court should grant review to decide whether "entitled to supplementary security income benefits" within a Medicare payment formula refers to eligibility for benefits or entitlement to payment. This question was left open in Becerra v. Empire Health Foundation, 597 U.S. 424, 434 n.2 (2022).
Grants Pass v. Johnson, No. 23-175 (S. Ct.): As lead counsel, filed an amicus brief in support of Respondents, arguing that the Court should dismiss the petition as improvidently granted because the district court's injunction can be sustained solely on its unchallenged and correct excessive fines holding.
Becerra v. San Carlos Apache Tribe, Nos. 23-250 et al. (S. Ct.): As co-counsel, filed an amicus brief in support of Respondents, arguing that the contract support cost mandate in the Indian Self-Determination and Education Assistance Act is constrained by settled federal contracting principles and rigorous financial controls, and that expenses to administer program income expenditures qualify as contract support costs.
SEC v. Jarkesy, No. 22-859 (S. Ct.): Filed an amicus brief on behalf of the Association of Administrative Law Judges in support of Petitioner, arguing that long-established tenure protections for ALJs are constitutional and necessary, and that the constitutionality of removal limits for Social Security Administration ALJs stands on a particularly firm footing.
Acheson Hotels, LLC v. Laufer, No. 22-429 (S. Ct.): Filed an amicus brief on behalf of disability antidiscrimination law scholars in support of Respondent, arguing that a disabled person who is excluded from the planning phase of booking travel online, including a tester who seeks to determine whether businesses are complying with the Americans with Disabilities Act, is harmed by both practical and expressive exclusion.
ABKCO Music, Inc. v. Sagan, No. 22-1053 (S. Ct.): Filed an amicus brief on behalf of the Recording Industry Association of America, ASCAP, and BMI at the certiorari stage, arguing that the Supreme Court should review a Second Circuit decision that artificially narrowed direct liability for copyright infringement.
CFPB v. Community Financial Services Ass’n of Am., No. 22-448 (S. Ct.): Filed an amicus brief on behalf of current and former members of Congress in support of Petitioners, arguing that the CFPB’s funding structure is consistent with centuries of congressional appropriations practice and that Congress continues to exercise robust oversight over the Bureau.
Students for Fair Admissions v. President and Fellows of Harvard College, Nos. 20-1199 et al. (S. Ct.): As co-counsel representing 15 major American businesses, filed an amicus brief in support of Respondents, arguing that American businesses rely on universities to create a pipeline of diverse leaders equipped with the skills to thrive in the global marketplace, and diversity remains a compelling interest.
Penobscot Nation v. Frey, Nos. 21-838, 21-840 (S. Ct.): Filed an amicus brief on behalf of members of the Congressional Native American Caucus at the certiorari stage, arguing that the court of appeals wrongly limited the applicability of the Indian treaty canons of construction to formal treaties and misunderstood congressional intent regarding an inter-sovereign agreement with the Penobscot Nation.
Haaland v. Brackeen, Nos. 21-376, 21-377 (S. Ct.): Filed an amicus brief on behalf of Casey Family Programs and ten other child welfare and adoption organizations at the certiorari stage, arguing that the Indian Child Welfare Act represents best practices in child welfare.
Mahanoy Area School Dist. v. B.L., 141 S. Ct. 2038 (2021): Filed an amicus brief on behalf of current and former student school board members, arguing that permitting schools to regulate off-campus speech “directed” at the school would chill core political speech and authorize an unprecedented intrusion into students’ personal lives.
Yellen v. Confederated Tribes of the Chehalis Reservation, 141 S. Ct. 2434 (2021): Filed an amicus brief on behalf of the Association of Alaska Housing Authorities in support of Petitioners, arguing that Congress’s express recognition that Alaska Native Corporations (ANCs) are eligible for housing assistance confirms the eligibility of ANCs under the Indian Self-Determination and Education Assistance Act.
TCL Communication Technology Holdings Ltd. v. Telefonaktiebolaget LM Ericsson, No. 19-1269 (S. Ct.): Filed an amicus brief in support of certiorari on behalf of the Fair Standards Alliance, arguing that absent Supreme Court review, the Federal Circuit's decision requiring juries to decide fair, reasonable, and nondiscriminatory (FRAND) licensing terms for standard-essential patents seriously jeopardizes the FRAND commitments that are essential to economic growth and innovation.
McKesson v. Doe, 141 S. Ct. 48 (2020): Filed an amicus brief in support of certiorari on behalf of First Amendment scholars, arguing that the Supreme Court should review the Fifth Circuit's decision permitting tort claims against a protest organizer based on a protest participant's independent violent act because the decision is a sharp break with the robust protection of political assemblies that has prevailed since the early Republic.
General Electric Co. v. United Technologies Corp., No. 19-1012 (S. Ct.): Filed an amicus brief in support of Petitioner on behalf of Unified Patents, LLC; Engine Advocacy; Cable Television Laboratories, Inc.; the R Street Institute; and the Niskanen Center, arguing that the Supreme Court should review the Federal Circuit's patent-unique standing rule for inter partes and post-grant review appeals because the Federal Circuit's approach frustrates Congress's balanced approach to encouraging challenges to questionable patents and is particularly harmful to startups.
K.G.S. v. Facebook, Inc., No. 19-910 (S. Ct.): As lead counsel, filed a petition for certiorari arguing that the Supreme Court should grant review to decide whether virtual contacts can establish specific personal jurisdiction over a nonresident defendant under the effects-based test of Calder v. Jones, 465 U.S. 783, 788–89 (1984), where a tortfeasor, by disseminating content focused on the forum state, has knowingly caused the plaintiff to suffer reputational and emotional harm in that state. This question was left open in Walden v. Fiore, 571 U.S. 277, 290 n.9 (2014).
California v. Texas, 141 S. Ct. 2104 (2021): Filed amicus briefs in support of Petitioners on behalf of the Small Business Majority Foundation, arguing that the Supreme Court should grant review to determine the validity of the Affordable Care Act, and that the remainder of the Affordable Care Act remains valid and is critical to small businesses, even if the minimum coverage provision is unenforceable.
Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246 (2020): Filed an amicus brief on behalf of Montana Constitutional Convention delegates in support of Respondents, arguing that the Montana Constitutional Convention deemed Montana's no-aid clause essential to ensuring continued support for quality public schools, and the clause does not reflect anti-religious bias.
Financial Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Investment, LLC, 140 S. Ct. 1649 (2020): Filed an amicus brief on behalf of the Chamber of Commerce of the United States of America in support of neither party, arguing that if the Court reaches the question of remedy, the First Circuit's de facto officer ruling must be reversed.
Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020): As co-counsel, filed an amicus brief in support of Petitioners on behalf of America's Health Insurance Plans, arguing that the rule adopted by the Federal Circuit regarding the Affordable Care Act risk corridors program should not be affirmed because it undercuts the government's reliability as a business partner.
Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019): 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.): 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., 139 S. Ct. 1804 (2019): 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.
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.
Stokeling v. United States, 139 S. Ct. 544 (2019): 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): 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
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): 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): 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.
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): Filed 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.
Courts of Appeals
Gregorini v. Apple Inc., Nos. 20-55664, -55846 (9th Cir.): Successfully argued appeal contending that dismissal of copyright claims was inappropriate where the complaint plausibly alleged multiple concrete, detailed similarities in expressive elements of two fully-realized works.
Thunder Studios, Inc. v. Kazal, 13 F.4th 736 (9th Cir. 2021): Lead counsel on appeal, successfully arguing that a judgment imposing tort damages for "stalking" based on protest activity must be reversed because, among other reasons, it violates the First Amendment.
Whitney v. Montefiore Med. Ctr., No. 23-7961 (2d Cir.): Lead counsel on appeal, arguing that the district court erred in granting summary judgment to the employer on a medical resident's claims of disability discrimination and failure to accommodate his disability.
In re Niaspan Antitrust Litigation, 67 F.4th 118 (3d Cir. 2023): Lead counsel on appeal and assisted with briefing the successful petition for permission to appeal under Rule 23(f), arguing that the district court erred in denying class certification for purported lack of ascertainability.
United States ex rel. Lovell & McKusick v. AthenaHealth, Inc., 56 F.4th 152 (1st Cir. 2022): Lead counsel on appeal, arguing that the False Claims Act mandates the award of reasonable attorneys' fees to relators when the government intervened in their action, the action was settled in a global settlement involving multiple actions, and relators received a share of the proceeds.
Carbon Crest, LLC v. Tencue Productions, LLC, No. 22-15707 (9th Cir.): Lead counsel on appeal, arguing that a business's contractual choice-of-law clause should be enforced, and that the contract is valid under Delaware law governing approval of interested director transactions.
Texas Medical Ass’n v. HHS, No. 23-40217 (5th Cir.): Filed an amicus brief on behalf of America’s Health Insurance Plans, arguing that challenged rules are reasonable procedural guardrails for independent dispute resolution under the No Surprises Act that promote voluntary dispute resolution as Congress intended.
Texas v. EPA, Nos. 22-1031 et al. (D.C. Cir.): Filed an amicus brief on behalf of Consumer Reports in support of the EPA, arguing that the market for electric vehicles is being driven by consumer demand and automakers' choices, not EPA regulations.
Trumbull County, Ohio v. Purdue Pharma, L.P., No. 22-3750 et al. (6th Cir.): Filed an amicus brief on behalf of a group of tort and property law scholars in support of plaintiff counties, arguing that a jury verdict finding that defendants engaged in intentional and/or illegal conduct causing an opioid epidemic public nuisance fell well within the historical contours of public nuisance law, and that abatement funds are consistent with public nuisance history and doctrine.
In re Aearo Technologies, LLC, No. 22-2606 (7th Cir.): Filed an amicus brief on behalf of the Veterans of Foreign Wars of the United States and ten other veterans service organizations, arguing that veterans injured by defective military gear sold by financially healthy corporations should not be shunted into bankruptcy court.
City of Huntington v. Amerisourcebergen Drug Corp., Nos. 22-1819 et al. (4th Cir.): Filed an amicus brief in support of neither party on behalf of a group of tort and property law scholars, arguing that at early English common law and in its current form, public nuisance law has comfortably covered injury to the common good caused by unreasonably harmful product sales, as with the opioid epidemic.
Capitol Records, LLC v. Vimeo, Inc., No. 21-2949 (2d Cir.): Filed an amicus brief in support of Plaintiffs-Appellants on behalf of the National Music Publishers’ Association, Recording Industry Association of America, and Copyright Alliance, arguing that that a district court’s application of the Digital Millennium Copyright Act's safe harbor provisions regarding “red flag” knowledge and the “right and ability to control” cannot be squared with a basic understanding of the music industry and related technology.
Pfizer, Inc. v. U.S. Department of Health and Human Services, No. 21-2764 (2d Cir.): Filed an amicus brief in support of Defendants-Appellees on behalf of America’s Health Insurance Plans, arguing that imposing an extratextual “corrupt intent” element on the Anti-Kickback Statute will harm consumers, and that the Anti-Kickback Statute does not impede drug manufacturers from helping to address the problem of high-cost prescription drugs.
Sanofi-Aventis U.S., LLC v. Mylan, Inc., No. 21-3005 (10th Cir.): Filed an amicus brief in support of Defendants-Appellees on behalf of the Pharmaceutical Care Management Association, arguing that pharmacy benefit managers facilitate pro-competitive price competition between drug manufacturers and thereby promote affordable access to prescription drugs.
Sony Music Entertainment v. Cox Communication, Inc., No. 21-1168 (4th Cir.): Filed an amicus brief in support of Plaintiffs-Appellees on behalf of the National Music Publishers' Association, Nashville Songwriters Association International, and Songwriters of North America, arguing that vicarious liability for copyright infringement does not require "draw" and that separately-owned musical compositions and sound recordings are entitled to separate statutory damages for each separately sold individual song.
Morgan v. U.S. Soccer Federation, No. 21-55356 (9th Cir.): Filed an amicus brief on behalf of former leaders of the EEOC and the Office of Federal Contract Compliance Programs, arguing in support of Appellants that the district court wrongly granted summary judgment to U.S. Soccer on the Women's National Team's Equal Pay Act and Title VII compensation claims.
In re Grupo Televisa Securities Litigation, No. 21-1499 (2d Cir.): Filed an amicus brief on behalf of institutional investors, arguing in support of Petitioners that a district court order disqualifying counsel for failure to disclose transactions made by a third-party pooled investment vehicle would discourage or prevent institutional investors from serving as lead plaintiffs in securities fraud class actions, contrary to congressional intent.
Walters v. Martin, 18 F.4th 434 (4th Cir. 2021): Filed an amicus brief on behalf of the National Association of Criminal Defense Lawyers, arguing that a habeas petitioner's counsel's pervasive failure to communicate should be analyzed as a constructive denial of counsel or, if counsel's deficient performance is instead viewed as a series of separate errors, prejudice must be evaluated cumulatively.
In re Apple, No. 20-127 (Fed. Cir.): Filed an amicus brief on behalf of the Retail Litigation Center, arguing that the Federal Circuit should grant rehearing en banc to correct a panel decision that risks collapsing the distinction between a proper venue and a clearly more convenient venue in the context of transfer motions.
Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020): Filed an amicus brief on behalf of scholars of standing, federal jurisdiction, and constitutional law, arguing that the unique structure of the foreign emoluments clause gives members of Congress Article III standing.
New York Stock Exchange LLC, et al. v. SEC, 962 F.3d 541 (D.C. Cir. 2020): 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.
The Nasdaq Stock Market, LLC v. SEC, 961 F.3d 421 (D.C. Cir. 2020): 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, 943 F.3d 953 (D.C. Cir. 2019): Filed 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.
City of Oakland v. B.P. P.L.C., 960 F.3d 570 (9th Cir. 2020): Filed 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.
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.
State Appellate Courts
Animal Legal Defense Fund v. Olympic Game Farm Inc., No. 101264-1 (Wash.): Filed an amicus brief on behalf of historians and legal scholars, arguing in support of the Animal Legal Defense Fund that the common law scope of public nuisance was broad and included redress for claims of animal cruelty, and that historically, harm to animals has long been recognized as harm to the public good.
Catlett v. Teel, 477 P.3d 50 (Wash. App. 2020): Filed an amicus brief on behalf of the Pennsylvania Center for the First Amendment and Professor Eugene Volokh, arguing in support of Appellant that requesting public records and making them available online is protected speech under the First Amendment and Article 1, Section 5 of the Washington Constitution, and therefore cannot be the basis of a harassment claim under Washington law.
Energy Transfer Partners, LP v. Enterprise Products Partners, LP, 593 S.W.3d 732 (Tex. 2020): Filed an amicus brief on behalf of the Chamber of Commerce of the United States of America, the American Fuel & Petrochemical Manufacturers, and the Texas Association of Business, arguing that unfulfilled conditions precedent in a clear and unambiguous contract preclude a partnership from being formed as a matter of law.
Tennessee v. Welch, 595 S.W.3d 615 (Tenn. 2020): 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. 2019): 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): 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., 566 S.W.3d 671 (Tenn. 2019): 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.