Constitutional Law

Vice President Al Gore in the 2000 Florida election litigation. Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000); Bush v. Gore, 531 U.S. 98 (2000). See 2000 WL 34000757, 2000 WL 35546401, 2000 WL 1784898, 2000 WL 1793147 (briefs) (U.S. Supreme Court).

A case presenting the question whether certain Massachusetts officials enjoy Eleventh Amendment immunity from prospective injunctive and declaratory relief in a suit challenging action by the Massachusetts Department of Energy Resources and Department of Public Utilities. Town of Barntable v. Berwick, et al., Nos. 14-1597, 14-1598 (CA1).

A brief in opposition to a cert petition seeking Supreme Court review of the constitutionality of 28 U.S.C. § 636(c)(1) (Magistrate’s Act).  Braverman v. Dewey, 135 S. Ct. 231 (2014) (denying cert.).  See 2014 WL 4145284 (brief).

The Attorney General of Mississippi in a case presenting the question whether a state's parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint. Mississippi ex rel Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014). See 2013 WL 3894136, 2013 WL 5532272 (briefs) (U.S. Supreme Court).

GoDaddy.com, Inc. in opposition to a petition for writ of certiorari presenting the question whether the Supreme Court should review the Ninth Circuit’s decision that the Anticybersquatting Consumer Protection Act of 1999 (“ACPA”), 15 U.S.C. § 1125(d), does not include a cause of action for contributory “cybersquatting.”  See 2014 WL 3896324 (brief); Petroliam Nasional Berhad v. GoDaddy.com, Inc., 135 S. Ct. 55 (2014) (denying cert).

A group of amici historians and legal scholars in Sebelius v. Hobby Lobby Stores, Inc., detailing the historical treatment by the Supreme Court of the constitutional rights and liberty interest of corporations and natural persons.  134 S. Ct. 2751 (2014).  See 2014 WL 411289 (brief).

Bertelsmann in a case involving alleged copyright penalties and constitutional limits on the potential aggregation of statutory penalties. In re Napster, Inc. Copyright Litigation, 2006 WL 4122251 (N.D. Cal. Apr. 21, 2006).

Counseling an "activist" investor in regard to the potential for defamation suits as a result of criticizing sitting boards of directors.

An inventor in his constitutional challenge to the “first-to-file” provisions in the America Invents Act.

A Washington, D.C., policy group in a complex discovery dispute related to the Sony hack and the Mississippi Attorney General’s investigation of a major technology company.

An inventor in a constitutional challenge to the First-Inventor-To-File provisions of the America Invents Act of 2011. Madstad Engineering, Inc. v. U.S. Patent & Trademark Office, No. 8:12-CV-01589-SDM (M.D. Fla.).

A leading New York estate developer in one of the largest condemnations in the history of New York City, presenting important questions under the “Just Compensation” Clause of the Fifth Amendment: (i) whether the government’s obligation to compensate for the lost development potential of a condemned site (including compensating for the developer’s efforts in moving a project forward) applies only where the property owner can demonstrate that the development will come to fruition in the near future; (ii) whether the government may avoid paying, as part of a just compensation award, damages resulting from deliberate governmental interference with a development project that suppresses the property’s value at the time of the taking, compared to what it would otherwise have been; and (iii) whether a state court may exclude, or deny any probative value to, otherwise competent market-based evidence of property value, such as testimony by the property’s owner, financing proposals, and offers to lease and buy, solely because they are not presented by a real estate appraiser. River Center LLC v. Dormitory Authority of State of New York, 132 S. Ct. 2102 (2012).

General Electric in a case presenting the questions whether EPA’s interpretation of Sections 108 and 109 of the Clean Air Act effected an unconstitutional delegation of legislative power and whether EPA, in order to engage in reasoned decision making, must consider the costs and risk trade-offs of regulations promulgated under Section 109. Browner v. American Trucking Associations, Inc., 531 U.S. 457 (2001). See 2000 WL 1298958, 2000 WL 1010086 (briefs) (U.S. Supreme Court).

Trans Union in a case presenting the question whether the First Amendment permits the Federal Trade Commission to prohibit credit reporting agencies from distributing lists of selected names, addresses, and other information to a wide variety of organizations, including for-profit companies, political groups, and charitable entities, for the solicitation of charitable and political contributions and the sale of goods and services. Trans Union LLC v. FTC, 536 U.S. 915 (2002), 245 F.3d 809 (D.C. Cir. 2001). See 2002 WL 32135599, 2002 WL 32135584 (briefs) (U.S. Supreme Court and U.S. Court of Appeals for the D.C. Circuit).

A group of employment and civil procedure scholars in a case presenting the question whether a lawsuit brought as a collective action under Section 216(b) of the Fair Labor Standards Act becomes moot when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s individual damage claims. Genesis HealthCare Corp. v. Symczyk, No. 11-1059 (U.S. S.Ct.).

Male Native American inmates in a case presenting the question whether the Religious Land Use and Institutionalized Persons Act of 2000 requires that prison officials actually consider and demonstrate a sufficient basis for rejecting widely accepted accommodations to traditional religious practices as part of their burden of proving that they have chosen the “least restrictive means” of furthering their asserted governmental interests.  Billy “Two Feathers” Jones, et al. v. Leslie Thompson, et al.

Illinois Power in a case dealing in part with the corporate free speech rights of electric utilities to advertise their affiliation with unregulated subsidiaries. Illinois Power Co. v. Illinois Commerce Com'n, 316 Ill.App.3d 254, 736 N.E.2d 196 (5th Dist. 2000).

The Consumer Electronics Association in analysis of whether H.R. 3261, the Stop Online Piracy Act or “SOPA,” violates the First Amendment.

A Fortune 100 company in connection with legal analysis and counseling regarding the constitutionality of Section 17200 of the California Bus. & Prof. Code, which prohibits any form of unlawful, unfair, and fraudulent business acts and bestows standing to sue on “any person acting for the interests of itself, its members or the general public.”

An amicus brief on behalf of a group of trade associations in support of a petition for certiorari to the United States Supreme Court by Volvo Powertrain Corporation regarding extraterritorial application of the Clean Air Act.  (No. 14-748, S. Ct.).

A group of amici scholars in a case presenting the question whether, in the absence of any claim that an alleged violation of the Real Estate Settlement Procedures Act of 1974 affected the price, quality, or other characteristics of the settlement services provided, a private purchaser of real estate settlement services has standing to sue under Article III. First American Financial Corp. v. Edwards, No. 10-708 (U.S. S.Ct.).

A group of investment funds in a case presenting the questions (1) whether a state ban on speech by an issuer of unregistered securities to members of the public based upon their financial status violates the First Amendment, where the speech is concededly truthful and non-misleading, and where the state characterizes the speech ban as a “disclosure rule” to further an objective that federal law does not permit the state to achieve directly, and (2) whether the Due Process Clause of the Fourteenth Amendment permits a forum state to exercise personal jurisdiction over a non-resident business solely because the business operated a website accessible from the state (and from any other location in the world) and sent a single concededly truthful and non-misleading e-mail responding to a resident’s inquiry, when the business did not enter (and, based upon these communications, could not have entered) into a transaction with the resident. Bulldog Investors General Partnership v. Galvin, 132 S.Ct. 2377 (2012).

International insurance companies in connection with a constitutional analysis of pre-judgment attachment statutes in the U.S.

A major U.S. health insurer in connection with a constitutional analysis of state insurance rate regulation.

The Council on State Taxation, National Association of Manufacturers and National Marine Manufacturers Association in a case presenting the question of whether the Commerce Clause bars a state from imposing income and franchise tax on an out-of-state company engaged in interstate commerce, when that company has no “physical presence” in the state. FIA Card Services, N.A. v. Tax Commissioner of the State of West Virginia, 127 S. Ct. 2997 (2007). See 2007 WL 1379714 (brief) (U.S. Supreme Court).

A manufacturer of educational software in a case presenting the question of the Commerce Clause constraints on extraterritorial state regulation. Computer Curriculum Corp. v. Instructional Systems, Inc., 513 U.S. 1183 (1995). See 1995 WL 17047724 (brief) (U.S. Supreme Court).

Hercules (later acquired by Ashland, Inc.) in a case involving the retroactive imposition of CERCLA liability and EPA’s application of a cancer potency factor for dioxin exposure. U.S. v. Hercules, Inc., 247 F.3d 706 (8th Cir. 2001); United States v. Vertac, 453 F.3d 1031 (8th Cir. 2006), 127 S. Ct. 2098 (2007). See 2007 WL 989151, 2006 WL 3775972 (briefs) (U.S. Supreme Court and U.S. Court of Appeals for the Eighth Circuit).

Time Warner in a case presenting the question of the constitutionality of a Federal Communications Commission rule that effectively prohibited media companies from providing broadcast-television speech in places where they own cable-television systems. Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002), 293 F.3d 537. See 2001 WL 36039079 (brief) (U.S. Court of Appeals for the District of Columbia Circuit).

Time Warner in a case presenting the question whether federal statutory provisions limiting the total number of subscribers that a cable television system operator may serve through cable systems that it owns, and limiting the number of channels a cable system may occupy with affiliated programming, violate the First Amendment. Time Warner Entertainment Co. v. FCC, 531 U.S. 1183 (2001). See 2001 WL 34117635 (brief) (U.S. Supreme Court).

Litton Systems as amicus curiae in a case presenting the question whether the Seventh Amendment requires trial by jury of issues of patent construction in patent infringement actions. Markham v. Westview Instruments, Inc., 517 U.S. 370 (1996). See 1995 WL 702829 (brief) (U.S. Supreme Court).

U S West (now part of Qwest Communications) in a case involving Federal Communications Commission rules restricting telephone company use of “customer proprietary network information” (CPNI). Competition Policy Institute v. U S West Communications, Inc., 530 U.S. 1213 (2000); U S West Communications, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 1999).See 2000 WL 34015090 (brief) (U.S. Supreme Court and U.S. Court of Appeals for the Tenth Circuit).

EchoStar Communications (now part of DISH Network Corp.) in a case presenting the question whether the Satellite Home Viewer Act of 1988 is an unconstitutional abridgement of speech under the First Amendment. EchoStar Communications, Inc. v. CBS Broadcasting, Inc., 535 U.S. 1079 (2002).

Bell Atlantic (now part of Verizon Communications) in a case involving whether a federal statute prohibiting telephone companies from providing video programming to their subscribers violated the First Amendment. United States v. Chesapeake and Potomac Telephone Co. of Virginia, 516 U.S. 415 (1996), 42 F.3d 181 (4th Cir. 1994), 830 F. Supp. 909 (E.D. Va. 1993). See 1996 WL 67164, 1995 WL 611730 (briefs) (U.S. District Court for the Eastern District of Virginia, U.S. Court of Appeals for the Fourth Circuit, and U.S. Supreme Court).

BellSouth (now part of AT&T Corp.), the U.S. Telephone Ass’n, Bell Atlantic, Bell Atlantic Video Services Co., GTE Serv. Corp. and GTE Media Ventures, Inc. (now part of Verizon Communications) in a case challenging the FCC’s rules for Open Video Services. City of Dallas, Tex. v. F.C.C., 165 F.3d 341 (5th Cir. 1999).

U S West (now part of Qwest Communications) in cases presenting the question whether state regulatory imputation of Yellow Pages revenue to local telephone services constitutes an implicit tax on publishing activities in violation of First Amendment. U S West Communications, Inc. v. Tristani, 518 U.S. 1106 (2000); U S West Communications, Inc. v. Tristani, 182 F.3d 1202 (10th Cir. 1999). See 1999 WL 33632540, 1999 WL 33632543 (briefs) (U.S. Supreme Court and U.S. Court of Appeals for the Tenth Circuit); U S West Communications, Inc. v. Nelson, 146 F.3d 718 (9th Cir. 1998). See 1997 WL 33484820 (brief) (U.S. Supreme Court and U.S. Court of Appeals for the Ninth Circuit).

BellSouth (now part of AT&T Corp.) and U S West Communications (now part of Qwest Communications) in a case involving the constitutionality of ban on electronic publishing by Bell Operating Companies, by name, under the First Amendment and Bill of Attainder Clause. BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir. 1998), 526 U.S. 1086 (1999). See1998 WL 35240480 (brief) (U.S. Supreme Court and U.S. Court of Appeals for the District of Columbia Circuit). 

BellSouth (now part of AT&T Corp.) in a case involving whether the 1996 Telecommunications Act’s restriction on long-distance service by the Bell Operating Companies violated the Bill of Attainder Clause, equal protection principles, and the separation of powers. BellSouth Corp. v. FCC, 162 F.3d 678 (D.C. Cir. 1998).

SBC Communications (now part of AT&T Corp.) in a case involving whether the 1996 Telecommunications Act’s restriction on long-distance service by Bell Operating Companies violated the Bill of Attainder Clause, equal protection principles, and the separation of powers. SBC Communications, Inc. v. F.C.C., 981 F. Supp. 996 (N.D. Tex. 1997), 1998 WL 119707 (N.D. Tex. Feb. 11, 1998), 154 F.3d 226 (5th Cir. 1998), 525 U.S. 1113 (1999).

The United States Telephone Association and Bell Atlantic Corporation (now part of Verizon Communications) in a case presenting the question of First Amendment constraints on municipal cable regulation. Preferred Communications, Inc. v. City of Los Angeles, 512 U.S. 1235 (1994). See 1994 WL 16100574 (brief) (U.S. Supreme Court).

A television station in a case presenting the question whether the imposition of civil liability on a media defendant for using or disclosing the contents of illegally intercepted communications violates the First Amendment. Bartnicki v. Vopper, 532 U.S. 514 (2001). See 2000 WL 1614452 (brief) (U.S. Supreme Court).

Harvard, Yale, Princeton, Brown, and Duke Universities, the University of Chicago, the University Of Pennsylvania, and Dartmouth College in a case involving the permissibility of considering race as a factor in public university admissions. Gratz v. Bollinger, 539 U.S. 244 (2003). See 2003 WL 399220 (brief) (U.S. Supreme Court).

The State of Texas in a case presenting the question whether the Fourteenth Amendment prohibits state universities from considering race as a factor in individualized admissions decisions. State of Texas v. Hopwood, 518 U.S. 1033 (1996). See 1996 WL 33439162, 1996 WL 33439164 (briefs) (U.S. Supreme Court).

The Connecticut Bar Association and the National Association of Consumer Bankruptcy Attorneys in cases involving a constitutional challenge to provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Connecticut Bar Ass'n v. U.S., 620 F.3d 81 (2d Cir. 2010); Adams v. Zenas Zelotes, 606 F.3d 34 (2d Cir. 2010).

The National Association of Consumer Bankruptcy Attorneys in appeals presenting constitutional challenges to certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Olsen v. Mukasey, Nos. 07-35616, 07-35762 (filed Jan. 17, 2008). See 2008 WL 592086 (brief) (U.S. Court of Appeals for the Ninth Circuit); Adams v. Zelotes, No. 07-1853 (filed Sept. 12, 2007) (U.S. Court of Appeals for the Second Circuit).

The Michigan Chamber of Commerce in a case presenting the constitutionality of state environmental regulation authorizing state agencies to demand that owners of Superfund sites perform response activities without the opportunity for a hearing. Pactiv Corp. v. Chester, 455 F. Supp. 2d 680 (E.D. Mich. 2006).

The Washington Legal Foundation and Kansas Grain and Feed Association in a case presenting the question whether the remedial scheme of the Superfund statute (CERCLA), allowing for issuance of unilateral administrative orders prior to a hearing, violated procedural due process. Raytheon Aircraft Co. v. United States, 501 F. Supp. 2d 1323 (D. Kan. 2007).

A Full Faith and Credit case involving the enforceability in federal court of a consent decree entered by a state court enjoining a witness from testifying in the federal action. Baker v. General Motors Corp., 522 U.S. 222 (1998). See 1997 WL 33485584, 1997 WL 471824, 1997 WL 278921, 1996 WL 33414099 (briefs) (U.S. Supreme Court).

Amici legal scholars in a case involving the Seventh Amendment limits on judicial review of damages awards. Gasperini v. Center for Humanities, 518 U.S. 415 (1996). See 1996 WL 88776 (brief) (U.S. Supreme Court).

A group of parents and children in a constitutional challenge to a Kansas statute capping the amount of money a school district may raise through taxes to spend on education. Petrella v. Brownback, --- F.3d ----, 2012 WL 4953107 (10th Cir. 2012).

The Office of the Special Deputy of Illinois in connection with constitutional issues concerning questions of priority of claims asserted by the federal government in an insurance company rehabilitation proceeding.