Jonathan S. Massey
Partner
jmassey@masseygail.com

Massey & Gail LLP
The Wharf
1000 Maine Ave. SW
Suite 450
Washington, D.C. 20024
Office: 202.652.4511 
Direct: 202.650.5452
Fax: 312.379.0467

vCard

Jonathan S. Massey

Jonathan S. Massey’s practice centers on complex legal questions in trial and appellate courts and regulatory agencies.  He has argued over 60 cases in federal and state courts, including three in the U.S. Supreme Court. He has filed briefs in dozens of other matters, including more than 90 in the U.S. Supreme Court alone.

In addition, he has represented clients before the U.S. Department of Justice, Federal Communications Commission, Federal Trade Commission, Environmental Protection Agency, and other federal agencies.  He also counsels clients on key business issues in a wide range of non-litigation contexts.

His experience spans antitrust, bankruptcy, telecommunications, securities, financial services, intellectual property, tax, environmental law, civil procedure, and constitutional questions.  His clients have included many leading business corporations, former Vice President Al Gore (in Bush v. Gore), Members of Congress, U.S. states, foreign countries, and Harvard, Yale, and Princeton universities.

Mr. Massey has secured impressive wins for clients, including:

In Mississippi ex rel Hood v. AU Optronics Corp., 571 U.S. 161 (2014), he successfully briefed and argued a Class Action Fairness Act case (winning 9-0), after another CAFA action had been decided 9-0 the other way during the previous Term. 

In West Virginia v. EPA, 136 S.Ct. 1000 (2016), he successfully briefed the first-ever Supreme Court stay of an agency regulation prior to judicial review in the lower courts. 

In Keen v. JPMorgan Chase & Co., 699 Fed. Appx. 683 (9th Cir. 2017), affirming 2015 WL 6601775 (N.D. Cal. Oct. 30, 2015), he successfully briefed and argued a district court motion to dismiss a Truth in Lending Act putative class action seeking substantial damages in a mortgage lending case, and then successfully briefed and argued the appeal. 

In Schramm v. JP Morgan Chase Bank, N.A., 655 Fed. Appx. 553 (9th Cir. 2016), he successfully briefed and won (this time without oral argument) another appeal involving a mortgage lending class action seeking significant damages.

In Chavez v. Dole Food Company, Inc., 836 F.3d 205 (3d Cir. 2016) (en banc), he successfully briefed and argued an en banc appeal unanimously reversing the panel decision, persuading the original authoring judge to switch his vote as well.

Education

  • Harvard Law School, J.D., magna cum laude, 1988.  Research assistant to Lawrence Summers and Laurence Tribe, who wrote in the preface to his constitutional law treatise that “Jonathan knows more law than Lexis and Westlaw combined and can access it all in a nanosecond.”
  • Harvard College, A.B., magna cum laude, 1985.

Clerkships

  • Judge Abner J. Mikva, United States Court of Appeals for the D.C. Circuit, 1988-89
  • Supreme Court Justice William J. Brennan, Jr., 1989 Term

Admissions

  • Maryland
  • District of Columbia
  • New York
  • United States Supreme Court
  • United States Courts of Appeals for the D.C. Circuit, Federal Circuit, and First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits
  • United States District Courts for the District of Columbia, District of Maryland, and Southern District of Texas
  • United States Court of Federal Claims

Awards and Honors

  • Global Competition Review award for Litigation of the Year - Non-Cartel Prosecution, for O’Bannon v. NCAA 
  • “Super Lawyers” designation 
  • National Debate Champion, 1985
  • Phi Beta Kappa, Harvard College
  • Editor, Harvard Law Review

Publications

  • “March Sanity: Can Courts Finesse a Legal Remedy to the NCAA’s Fantasy of Amateurism?” The Recorder (Mar. 29, 2019) (with Paul Berks)
  • “The Two That Got Away: First American Financial Corp. v. Edwards and Kiobel v. Royal Dutch Petroleum Co.,” 6 Charleston L Rev. 63 (2012).
  • “Wrong Ideas About Wrongful Death Statutes,” 33 Trial 24 (Jan. 1997). 
  • “Preemption of Medical Device Tort Claims: Recent Developments,” 31 Trial 26 (Nov. 1995). 
  • “The Florida Tobacco Liability Law: Fairy Tale Objections to a Reasonable Solution to Florida’s Medicaid Crisis,” 46 Fla. L. Rev. 591 (1995).

Teaching

  • Lecturer, Harvard Law School, 2014-Present
  • Instructor in appellate advocacy, D.C. Bar course for new admittees, 2015-present
  • Adjunct Professor of Law, Georgetown University Law Center, 1996-2000

Government Service

  • Deputy Special Counsel to Independent Counsel Lawrence Walsh (1993-1994).

Representative Matters

  • Bush v. Gore, 531 U.S. 98 (2000); Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000) (represented Vice President Al Gore in the 2000 Florida election litigation). 
  • Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) (successfully briefed and argued Foreign Sovereign Immunities Act case). 
  • Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) (briefed and argued case presenting question of proper standard of appellate review in punitive damages cases).
  • State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Honda Motor Co. v. Oberg, 512 U.S. 415 (1994);TXO Production Co. v. Alliance Resources Corp., 509 U.S. 443 (1993) (briefed leading Supreme Court punitive damages cases). 
  • Gratz v. Bollinger, 539 U.S. 244 (2003) (filed amici brief on behalf of Harvard, Yale, Princeton, and other universities regarding affirmative action). 
  • Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) (briefed leading Supreme Court cases on class action settlements).
  • Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) (briefed leading Supreme Court case on preclusion principles in diversity cases).
  • Baker v. General Motors Corp., 522 U.S. 222 (1998) (briefed Supreme Court case on Full Faith and Credit Clause).
  • Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869 (1996) (briefed leading Supreme Court scientific evidence case). 
  • Hammer v. United States Department of Health and Human Services, 905 F.3d 517 (7th Cir. 2018) (represented Illinois Director of Insurance in jurisdictional dispute arising from health insurance company liquidation).
  • Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc., 896 F.3d 1322 (Fed. Cir. 2018) (briefed and argued appeal presenting question of sovereign immunity in inter partes review proceedings before USPTO).
  • Land of Lincoln Mutual Health Insurance Company v. United States, 892 F.3d 1184 (Fed. Cir. 2018) (briefed and argued appeal of health insurer’s claim against U.S. for payments due under Affordable Care Act).
  • Electric Power Supply Association v. Star, 904 F.3d 518 (7th Cir. 2018) (assisted in briefing challenge to Illinois bailout of nuclear power plants).
  • Marquinez v. Dow Chemical Company, 183 A.3d 704 (Del. 2018) (successfully briefed and argued case involving American Pipe class action tolling).
  • Santander Holdings USA, Inc. v. United States, 844 F.3d 15 (1st Cir. 2016) (briefed and argued case involving over $200MM in foreign tax credits).
  • In re Pfizer, IncSecurities Litig., 819 F.3d 642 (2d Cir. 2016) (successfully briefed appeal of securities fraud case reversing district court’s outcome-determinative exclusion of damages expert under Fed. R. Evid. 702 and Daubert).
  • O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir 2015), cert. denied, 137 S.Ct. 277 (2016) (successfully briefed landmark appeal holding NCAA liable under federal antitrust law); O’Bannon v. NCAA, 739 Fed. Appx. 890 (9th Cir. 2018) (successfully briefed and argued appeal involving antitrust fee award).
  • In re Murray Coal Co., 788 F.3d 330 (D.C. Cir. 2015) (briefed challenge to EPA Clean Power Plan).
  • Madstad Engineering, Inc. v. U.S. Patent and Trademark Office, 756 F.3d 1366 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1398 (2015) (briefed and argued constitutional challenge to the First-Inventor-To-File provisions of the America Invents Act of 2011).
  • Dow Chemical Corp. v. Blanco, 67 A.3d 392 (Del. 2013) (successfully briefed and argued case on cross-jurisdictional class action tolling of statutes of limitation).
  • Connecticut Bar Ass’n v. U.S., 620 F.3d 81 (2d Cir. 2010) (briefed and argued First Amendment challenge to provisions of Bankruptcy Reform Act of 2005 restricting attorney speech).
  • Intercollegiate Broadcast System, Inc. v. Copyright Royalty Bd., 571 F.3d 69 (D.C. Cir. 2009), 574 F.3d 748 (D.C. Cir. 2009) (briefed challenge to copyright royalty rates on behalf of commercial webcasting services).
  • Newby v. Enron Corp., 542 F.3d 463 (5th Cir. 2008); In re Enron Corp. Securities, 535 F.3d 325 (5th Cir. 2008);Fleming & Associates v. Newby & Tittle, 529 F.3d 631 (5th Cir. 2008) (briefed and argued series of appeals involving the ability of Enron shareholders to file state-law securities fraud claims in state court).
  • Collier v. Aksys, Inc., 179 Fed. Appx. 770 (2d Cir. 2006) (successfully briefed and argued appeal for hedge fund defendant in a civil securities fraud action). 
  • Smart v. Wyeth, 123 Fed. Appx. 465 (3d Cir. 2005), cert. denied, 546 U.S. 818 (2005) (briefed and argued appeal presenting question whether federal court that approved a class action settlement is permitted to regulate ongoing state trial court proceedings by requiring stipulation to a reverse bifurcation procedure).
  • In re Diet Drugs Prods. Liab. Litig., 385 F.3d 386 (3d Cir. 2004); In re Diet Drugs Prods. Liab. Litig., 90 Fed. Appx. 643 (3d Cir. 2005); In re Diet Drugs Prods. Liab. Litig, 431 F.3d 141 (3d Cir. 2005); In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372 (3d Cir. 2005); In re Briscoe, 448 F.3d 201 (3d Cir. 2006); In re Wilson, 451 F.3d 161 (3d Cir. 2006) (briefed and argued series of appeals involving challenges to the Diet Drugs Products Liability settlement).
  • Bank One, N.A. v. Shumake, 281 F.3d 507 (5th Cir. 2002) (briefed and argued appeal presenting the question whether the prudential “tribal exhaustion” doctrine displaces the statutory command of the Federal Arbitration Act).
  • Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) (represented U.S. citizens formerly held hostage in the U.S. Embassy in Tehran from 1979-1981 in a suit for damages against Iran). 
  • First National Bank of Chicago v. Ackerley Communications, Inc., 28 Fed. Appx. 61 (2d Cir. 2002) (briefed and argued appeal presenting the question of the enforceability of an option under an interest-rate-swap agreement).
  • Pritchard v. Coram Healthcare Corp., No. B215010 (Cal. App. 2d Dist.) (briefed and argued appeal on behalf of health care provider in a multi-million-dollar medical malpractice case).
  • Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001) (successfully briefed and argued Foreign Sovereign Immunities Act appeal).