NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA
Filing
8
MOTION to Certify Class by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM (Attachments: #1 Declaration of Deepak Gupta, #2 Declaration of William Narwold, #3 Declaration of Jonathan Taylor, #4 Text of Proposed Order)(Gupta, Deepak)
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 1 of 83
EXHIBIT 1
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 2 of 83
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL VETERANS LEGAL
SERVICES PROGRAM, NATIONAL
CONSUMER LAW CENTER, and
ALLIANCE FOR JUSTICE, for themselves
and all others similarly situated,
Plaintiffs,
Case No. 16-745
v.
UNITED STATES OF AMERICA,
Defendant.
DECLARATION OF DEEPAK GUPTA IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I, Deepak Gupta, declare as follows:
1.
I am lead counsel for the plaintiffs. This declaration details my experience,
and that of my firm, relevant to this litigation. In particular, this declaration highlights
our distinctive experience with a relatively rare type of litigation—nationwide class
actions against the federal government under the Tucker Act and Little Tucker Act:
• A case in which our firm successfully represented a class of all of the nation’s
federal bankruptcy judges and their surviving spouses, estates, and beneficiaries,
recovering $56 million in illegally withheld judicial pay and benefits;
• A case in which I successfully represented a class of veterans challenging the Army
Air Force Exchange Service’s withholding of federal benefits to collect old debts
arising out of purchases of military uniforms, recovering $7.4 million in illegal
charges;
• A case in this Court, recently granted class certification by Judge Lamberth, in
which our firm (with co-counsel at Motley Rice) represent tax preparers bringing
illegal-exaction claims to recover unlawfully excessive fees paid to the IRS.
This declaration also details the qualifications of two colleagues with whom I am working
closely on this case: Jonathan Taylor and Rachel Bloomekatz. Mr. Taylor is a principal of
1
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 3 of 83
the firm who has played a leading role in all aspects of the judicial-compensation and
IRS-fee cases, and will be playing a similar role here. Ms. Bloomekatz, also a principal,
has been assisting us on legal issues in this case, and will continue to do so.
2.
In addition, this declaration discusses the qualifications of two other co-
counsel: Michael Kirkpatrick, a former senior trial lawyer at the U.S. Department of
Justice who currently co-directs Georgetown Law’s Institute for Public Representation,
and Brian Wolfman, a class-action expert currently at Stanford Law School, who worked
with me on the veterans’ benefits and judicial-compensation cases.
2.
We envision this team working in concert to litigate the case, along with
the other co-lead firm, Motley Rice LLC. Our team will take a lead role in briefing,
argument, research, and legal analysis, while Motley Rice will take a lead role in case
management and discovery and, if necessary, trial or settlement of the case.
My Background and Relevant Experience
2.
I am the founding principal of Gupta Wessler PLLC, a boutique law firm
in Washington, DC, focusing on Supreme Court, appellate, and complex litigation on
behalf of plaintiffs and public-interest clients, with an emphasis on class actions and
constitutional law. I have also taught courses on public interest law and appellate
advocacy as an adjunct professor at both Georgetown and American universities. My
complete biography is attached as Exhibit A.
3.
Class actions are a particular focus of my work. I have argued numerous
appeals on class-action issues at all levels of the federal courts, and much of our firm’s
docket is occupied by appeals arising from class actions. As described more fully below,
our firm also initiates select class-action cases, like this one, from the ground up—typically
in collaboration with large, sophisticated class-action firms like Motley Rice.
2
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 4 of 83
4.
Bankruptcy Judges’ Compensation Litigation. In November 2012,
I was approached by the National Conference of Bankruptcy Judges about whether I
would agree to represent the nation’s federal bankruptcy judges in preparation for classaction litigation over salary and benefits that the United States allegedly owed to the
judges and their beneficiaries. Over a number of years, Congress had violated the U.S.
Constitution’s Compensation Clause with respect to the salaries of federal district judges.
The bankruptcy judges wanted to explore potential statutory claims, under the Tucker
Act, arising from those constitutional violations. The Conference had appointed members
of a litigation committee, led by Chief Bankruptcy Judge Barbara Houser of the Northern
District of Texas (herself a former experienced complex litigator).
5.
This committee of federal bankruptcy judges conducted a nationwide
search for the counsel most qualified to represent them. They sought lawyers experienced
in both litigation with the federal government and class actions, and capable of handling
any appellate proceedings. After soliciting recommendations and interviewing several
firms, they chose our firm to represent them and asked me to serve as lead counsel.
6.
As a result, between 2012 and the present, our firm has served as sole
counsel to a certified nationwide class of current and former federal bankruptcy judges
and their surviving spouses, life-insurance beneficiaries, and estates in Houser v. United
States, No. 13–607C (Fed. Cl.)—one of the few certified class actions of federal judges in
U.S. history. We litigated the case from start to finish, ultimately securing a judgment of
approximately $56 million in November 2014 in the Court of Federal Claims, and
working thereafter to administer a comprehensive claims process.
7.
I served as lead class counsel in Houser, working closely with Jonathan
Taylor. Brian Wolfman also assisted on various legal issues that arose throughout the
3
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 5 of 83
litigation. The case required us to interact on a constant basis with our counterparts at the
Department of Justice. Our formal litigation work eventually included successful briefing
and argument on the government’s motion to dismiss, cross-motions for summary
judgment on liability, a motion for class certification, and a class-notice plan. Our work
did not end with the certification of a class and the court’s determination of liability. To
the contrary, we retained damages experts, vetted the government’s damages
calculations, continued to respond to class members’ inquiries, and negotiated with the
government over a stipulated judgment and a class-claims process that has delivered our
clients one hundred cents on the dollar.
8.
In recognition of our successful efforts in the litigation, Mr. Taylor and I
both received the President’s Award from the National Conference of Bankruptcy Judges.
On March 22, 2016, The American Lawyer reported on our role in this litigation, observing
that “[i]t’s hard to imagine a higher compliment than being hired to represent federal
judges” in this important class-action litigation against the United States.
9.
IRS Tax Preparer Fees Litigation. We currently serve as co-counsel
for the plaintiffs in Steele v. United States, No. 14-cv-01523-RCL (D.D.C.), another case in
this Court with many similarities to this litigation. In that case, we represent a certified
nationwide class of tax-return preparers suing the federal government under the Little
Tucker Act for excessive user fees.
10.
As in the litigation here, the plaintiffs in Steele bring an illegal-exaction
claim against the government. A team from the national class-action firm Motley Rice
LLC (co-lead in this case) serves as lead counsel in Steele, and brought us into the case
because of our relevant expertise with litigation involving the federal government. On
June 30, 2015, Judge Lamberth issued a decision appointing our team as interim class
4
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 6 of 83
counsel in Steele. In his decision, he noted that he was “thoroughly impressed by the
qualifications” of counsel—including previous work on “class actions against the
government” and “illegal exaction claims.” Steele, Dkt. 37, at 7. On February 9, 2016,
Judge Lamberth certified a nationwide class and named us class counsel. Dkt. 54
11.
Experience Defending the Federal Government in Litigation.
Before founding Gupta Wessler in 2012, I served as Senior Litigation Counsel in the U.S.
Department of the Treasury, setting up the new Consumer Financial Protection Bureau
(CFPB), and then in the Office of the General Counsel at the CFPB, where I successfully
defended the agency in litigation. That work included serving as lead counsel in a
successful defense in this Court—against an APA and Fifth Amendment challenge—of
federal regulations that established nationwide licensing and regulation of mortgage
brokers for the first time. Neighborhood Assistance Corp. of Am. v. Consumer Fin. Prot. Bureau, 907
F. Supp. 2d 112 (D.D.C. 2012). I was also responsible for setting up the new agency’s
appellate litigation and amicus programs, and working with the Office of the Solicitor
General on cases before the U.S. Supreme Court. Finally, my duties included advising
senior government officials on issues of constitutional and administrative law, including
issues related to the launch of the new federal agency. See Deepak Gupta, The Consumer
Protection Bureau and the Constitution, 65 ADMIN. L. REV. 945 (2013).
12.
Before my stint in government service (and following my federal judicial
clerkship), I spent seven years at Public Citizen Litigation Group in Washington, DC—
one of the nation’s preeminent public-interest organizations. There, as a staff attorney
and director of the Consumer Justice Project, I focused on litigating cutting-edge class
actions and appeals nationwide. I also spent my first year at the organization as the Alan
Morrison Supreme Court Fellow, working on litigation before the U.S. Supreme Court.
5
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 7 of 83
13.
Veterans’ Withholding Litigation. Much of my litigation at Public
Citizen involved the federal government. In Briggs v. Army & Air Force Exchange Service, No.
C 07–05760, 2009 WL 113387 (N.D. Cal. Jan. 16, 2009), for example, I successfully
represented a nationwide class of veterans challenging the government’s illegal
withholding of federal benefits to collect old debts arising out of purchases of military
uniforms. I took the lead in briefing and arguing several issues relevant to this litigation—
including Little Tucker Act jurisdiction, and the interaction between the class-action
device and the special venue rules applicable to the federal government. My co-counsel
and I ultimately obtained a $7.4 million settlement for our clients.
14.
I also served as lead counsel for three national consumer groups in a
successful and groundbreaking APA unreasonable-delay suit against the U.S. Department
of Justice, resulting in the creation and implementation of the National Motor Vehicle
Title Information System. See Public Citizen, et al v. Mukasey, 2008 WL 4532540 (N.D. Cal.).
15.
Finally, I served as co-counsel (with lead counsel Michael Kirkpatrick) in a
case in which we successfully represented survivors of Hurricanes Katrina and Rita in an
APA and constitutional due-process challenge to FEMA’s denial of federal disaster
assistance. See Ass’n of Community Orgs. for Reform Now v. Fed. Emergency Mgmt. Agency, 463 F.
Supp. 2d 26 (D.D.C. 2006).
Jonathan Taylor
17.
As he has in the bankruptcy judges’ and IRS fees litigation, Jonathan
Taylor will play a key role in assisting me on all aspects of this litigation. Mr. Taylor was
the lead associate representing the class in Houser, and is now a principal of Gupta
Wessler. He drafted most of the pleadings and briefing in the bankruptcy judges’
litigation, and assumed a lead role in working with the Department of Justice throughout
6
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 8 of 83
the litigation. Mr. Taylor has also personally argued two appeals involving
administrative-law issues and has briefed numerous appeals arising out of class actions in
the federal courts, including one that he argued before the Ninth Circuit earlier this year.
18.
Mr. Taylor is a graduate of Harvard Law School who clerked for a judge
on the U.S. Court of Appeals for the Sixth Circuit before joining Gupta Wessler. His law
firm biography is attached as Exhibit B.
Rachel Bloomekatz
18.
We expect that Rachel Bloomekatz, also a principal at Gupta Wessler, will
be working with us on various legal issues as the case moves forward.
19.
Ms. Bloomekatz is a gradate of UCLA who has completed judicial
clerkships on the Supreme Court of the United States, the Massachusetts Supreme
Judicial Court, and the U.S. Court of Appeals for the Second Circuit. She recently joined
Gupta Wessler from the Issues and Appeals group at Jones Day, where she worked on
class-action issues for defendants in a variety of cases. Ms. Bloomekatz’s law firm
biography is attached as Exhibit C.
Brian Wolfman
19.
In addition to our core team at Gupta Wessler, we expect to consult on
this litigation with Brian Wolfman, who is currently Professor of the Practice of Law at
Stanford Law School. Mr. Wolfman is also a Lecturer on Law at Harvard Law School,
where he has taught a course on appellate advocacy for over a decade. He was previously
a professor at Georgetown Law, where he also taught the standard course on Federal
Courts. Mr. Wolfman’s biography and curriculum vitae are attached as Exhibit D.
20.
In addition to his recent work on Houser, on which he spent significant time
analyzing the legal issues and reviewing the pleadings and motions filed, Mr. Wolfman
7
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 9 of 83
has unusually extensive experience litigating cases against the federal government. He is
the former Director of Public Citizen Litigation Group, where he worked with me on
numerous cases, including Briggs, argued several cases against the federal government in
the U.S. Supreme Court, and litigated many complex cases against the federal
government in the lower courts.
22.
Mr. Wolfman is also a nationally recognized expert on class actions. He
served as Advisor to the American Law Institute’s PRINCIPLES
OF THE
LAW
OF
AGGREGATE LITIGATION (2010), a pathbreaking project akin to a restatement of the law
of class actions. He has also testified before Congress on class actions, before the Civil
Rules Committee of the Judicial Conference on proposed amendments to Rule 23, and
before the Third Circuit Task Force of the Selection of Class Counsel at the request of
Chief Judge Edward M. Becker.
Michael Kirkpatrick
23.
Mr. Kirkpatrick, an experienced class-action litigator—and a former
senior trial attorney at the Civil Rights Division of the U.S. Department of Justice—is
also working as co-counsel with the team at Gupta Wessler on this litigation. Currently a
co-director of Georgetown Law’s Institute for Public Representation, Mr. Kirkpatrick has
also worked as an attorney with Public Citizen Litigation Group and Texas RioGrande
Legal Aid. He focuses his practice on class actions, administrative law, constitutional law,
and civil rights. Mr. Kirkpatrick’s curriculum vitae is attached as Exhibit E.
I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the
foregoing is true and correct.
/s/ Deepak Gupta
_____________________________
Deepak Gupta
Executed on May 2, 2016.
8
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 10 of 83
EXHIBIT A
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 11 of 83
Browse: Home » People » Deepak Gupta
DEEPAK GUPTA
deepak@guptawessler.com
Tel. 202.888.1741 | Fax 202.888.7792 | 1735 20th Street, NW, Washington,
DC 20009
Legal Assistant: Stephanie Garlock, stephanie@guptawessler.com
Testimonials | Supreme Court Cases | Appeals | Other Litigation | Speaking
Appearances
Deepak Gupta is the
founding principal of
Gupta Wessler PLLC.
He
specializes
in
Supreme
Court,
appellate,
and
complex litigation on
a wide range of issues,
including
constitutional
law,
class actions, access
to the civil justice
system,
and
consumers’
and
workers’ rights. He has also taught courses on public interest law
and appellate advocacy as an Adjunct Professor of Law at both
Georgetown and American universities.
Judges and lawyers alike praise Deepak’s clear and simple
writing style, and the National Law Journal has singled out his
“calm, comfortable manner that conveys confidence” in oral
argument. He has personally handled well over a hundred
appeals, and has briefed or argued cases before the U.S. Supreme
Court, all of the federal circuits, federal district courts
nationwide, and seven state supreme courts. He has successfully
opposed dozens of significant petitions for certiorari in the
Supreme Court, preserving important victories for plaintiffs and
the public interest. In a small number of cases, Deepak also
works with clients and co-counsel to initiate constitutional
challenges and class actions from the ground up.
Deepak’s clients have included sitting federal judges, members of
Congress, classes of consumers and workers, technology
companies, retail merchants, professional athletes, individual
lawyers, and national non-profit organizations. He is frequently
sought out by leading trial lawyers to defend their clients’ most
consequential victories or to resurrect worthy claims on appeal,
often after years of hard-fought, high-stakes litigation. He
approaches each matter with a fresh perspective, a bird’s-eye
view of the law, and a creative and strategic sense of how to
reframe the issues for success on appeal.
Recent highlights include:
As lead counsel to a certified class of federal judges (one of
the few such classes in U.S. history), obtained a $56 million
judgment arising out of Congress’s violation of the
Case 1:16-cv-00745-ESH
Constitution’s Compensation Clause; received the
President’s Award from the National Conference of
Bankruptcy Judges for his work on this litigation
Document 8-1 Filed 05/02/16 Page 12 of 83
As lead appellate counsel to 34 former professional football
players, currently challenging the proposed class-action
settlement of claims that the NFL deliberately hid the longterm dangers of concussions
As appellate counsel to Everytown for Gun Safety–the
nation’s largest gun-violence-prevention organization–
opposing Second Amendment challenges to common-sense
gun laws, such as waiting periods and public-carry
restrictions
As counsel to the family of an unarmed Mexican teenager
shot by a U.S. border patrol agent, petitioning the U.S.
Supreme Court to clarify whether the Constitution applies
to a no-man’s land along the U.S.-Mexico border
As lead counsel to merchants in the wake of the $7 billion
Visa swipe-fee antitrust settlement, designed and
successfully prosecuted First Amendment challenges to
credit-card surcharge statutes in New York and California,
currently defending those victories on appeal, and arguing
parallel appeals over identical Texas and Florida statutes
As lead appellate counsel in Chevron v. Donziger, opposed
Chevron’s efforts to collaterally attack an $8.6 billion oil
pollution judgment won by indigenous residents of
Ecuador’s Amazon rainforest
As appellate counsel to a coalition of tech companies and
non-profits, defending the FCC’s net-neutrality rule in the
D.C. Circuit
As an advocate in key battles over forced arbitration, argued
before the U.S. Supreme Court for the respondents in AT&T
Mobility v. Concepcion, represented a nationwide class of
merchants in American Express v. Italian Colors, and
supported policy solutions through Congress and the
Executive Branch
As appellate counsel in major wage-and-hour cases,
successfully obtained a Second Circuit ruling that a New
York billionaire was personally liable to his workers for $3.5
million in Fair Labor Standards Act violations, and
challenged Major League Baseball’s claim that its
promotional events are exempt from the FLSA
As counsel to an information-services company, briefed and
argued a U.S. Supreme Court case on the reach of the
Constitution’s Privileges and Immunities Clause and
dormant Commerce Clause
Before founding the firm in 2012, Deepak served as Senior
Litigation Counsel and Senior Counsel for Enforcement Strategy
at the Consumer Financial Protection Bureau during the agency’s
historic founding. As the first appellate litigator hired under
Elizabeth Warren’s leadership, he was instrumental in launching
the Bureau’s amicus program, defending its regulations in court,
and working with the Solicitor General’s office on Supreme Court
matters. For seven years previously, Deepak was an attorney at
Public Citizen Litigation Group, where he founded and directed
Case 1:16-cv-00745-ESH Document
Public Citizen Litigation Group, where he founded and directed
the Consumer Justice Project and was the Alan Morrison
Supreme Court Project Fellow.
During law school, Deepak worked on voting rights litigation at
the U.S. Department of Justice, church-state litigation at
Americans United for Separation of Church and State, and
prisoners’ rights litigation at the American Civil Liberties Union,
and then spent two years as a law clerk to the Honorable
Lawrence K. Karlton of the U.S. District Court for the Eastern
District of California. He received his law degree from
Georgetown, studied Sanskrit for one year at Oxford, and
received his undergraduate degree in philosophy from Fordham,
where he was elected to Phi Beta Kappa and competed in
numerous parliamentary debate tournaments including the
World Universities Debating Championships in Manila,
Philippines and Athens, Greece.
In addition to his litigation work, Deepak has testified before the
U.S. Senate and the U.S. House of Representatives, appeared on
television and radio including CNN, FOX News, ABC’s World
News and Good Morning America, and NPR’s All Things
Considered and Marketplace, and has been quoted regularly by
publications including The New York Times, Washington Post,
Los Angeles Times, Wall Street Journal, and USA
Today. Deepak occasionally writes for Consumer Law & Policy
Blog and SCOTUSblog, participates in moot courts at
Georgetown’s Supreme Court Institute, and frequently speaks at
legal conferences and law schools on topics including the
Supreme Court, class actions, and consumers’ and workers’
rights. He is a member of the Board of Directors of the Alliance
for Justice.
10.0
Superb
Top Attorney
Appeals
Deepak Gupta
_______________________________________
“Deepak possesses sharp legal acumen, an invaluable
strategic sense, a clear, uncluttered and persuasive
writing style, and an easy manner that makes him a
pleasure to work with. He is one of the few lawyers I
know who can distill the essence of a complicated issue
into a couple of sentences, and propose the resolution
of that issue in both an evocative and logically
appealing argument.” – John Roddy, Partner, Bailey &
Glasser, Boston, MA
8-1 Filed 05/02/16 Page 13 of 83
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 14 of 83
“Deepak Gupta is truly one of the finer appellate
lawyers in the country, with an abiding interest in
consumer rights and justice. I have been lucky enough
to have worked with him on several cases, and he may
be the best lawyer I have ever worked with. He has my
unhesitating endorsement.” – Paul Arons, Friday
Harbor, WA
“Deepak is an extraordinary attorney, with great
strategic vision and deep insights into effective
advocacy. He is one of the most capable lawyers with
whom I have worked, and a person with a strong
moral compass and enormous integrity.” – Paul Bland,
Executive Director, Public Justice
“Deepak is a brilliant, tireless advocate for consumers.
In a matter he handled in the United States Supreme
Court, he gave one of the best-prepared, most
compelling arguments I’d ever heard. Put simply,
Deepak is an outstanding lawyer.” – Jeffrey Fazio,
Partner, Fazio Micheletti LLP, San Ramon, CA
“Deepak is an outstanding attorney and a quick study
who possesses a strong working knowledge of
Supreme Court practice. His analytical and brief
writing skills are excellent! In addition to all of this,
Deepak is a great guy with whom I really enjoyed
working.” – M. Reid Estes, Member, Dickinson Wright,
Nashville, TN
“Deepak and his team handled an appeal before the
Supreme Court of the United States for our firm and
our clients, from start to finish, including oral
argument before the High Court. We worked closely
together for over one year and I had the privilege of
seeing first hand the exceptional and detail-oriented
approach Deepak brought to this all-important task.
His work product was and is of the highest caliber and
was met or exceeded only by his professionalism and
enthusiasm for the task.” – Alex Tomasevic, Nicholas &
Butler, LLP, San Diego, CA
“Deepak is an exceedingly bright, thoughtful, and
resourceful attorney. I had the pleasure of seeing him
argue before the U.S. Supreme Court and with
humility and grace, he dominated the courtroom and
easily outperformed his prestigious adversary. Beyond
the argument, Deepak has always impressed me with
his ability to quickly grasp and articulate complex
concepts and demonstrate excellent judgment in his
dealings with co-counsel and adversaries. I have no
doubt that he will accomplish much over his career.
Deepak has the skills and strong moral compass to be
a true leader and credit to our profession. He has my
respect and highest recommendation.” – Steve Berk,
Principal, Berk Law, Washington, DC
“Deepak Gupta has a well deserved reputation as one
of the best and brightest consumer lawyers in the
of the best and brightest consumer lawyers in the
Case 1:16-cv-00745-ESH Document
country. He has a gift for thinking of the policy
ramifications, issues, and arguments. Like a master
chess player he is able to think several steps ahead of
most people to anticipate adversaries, judges, and
other people. Mr. Gupta quickly gets to the heart of
complex legal issues. He is able to communicate issues
in a compelling persuasive manner that the average
lay person can understand and appreciate. If I were
assembling a team of top lawyers for an important
case, he is one of the first people that I would pick to be
on my team. He is a capable and dedicated advocate
for consumer rights.” – Michael Halbfish, Woodbridge,
New Jersey
“Deepak is an excellent attorney. I have relied on his
counsel on several health policy issues. His advice was
instrumental in helping us craft a strong national
menu labeling bill, which was signed into law in
March 2010.” – Margo Wootan, Ph.D., Director of
Nutrition Policy, Center for Science in the Public
Interest, Washington, DC
“Deepak is an outstanding appellate advocate who has
expansive knowledge of consumer issues, preemption
law, and federal courts. He is a top-notch lawyer.” –
Michael Donovan, Managing Principal, Donovan
Axler, LLC, Philadelphia, PA
“Deepak is an extraordinary appellate advocate.
Through his excellent writing, he reduces complex
legal theories to clear and easily comprehensible
arguments. Deepak’s creativity and extensive
knowledge of substantive constitutional law and
appellate procedure make him an exemplary consumer
and plaintiff’s advocate.” Nina Simon, former Director
of Litigation, Center for Responsible Lending
“Deepak Gupta ranks among the brightest, most
articulate and astute lawyers in the consumer law field
today. His appellate briefwriting is insightful, focused,
and highly persuasive. It has been a pleasure to get to
work with him.” – Bob Hobbs, National Consumer
Law Center, Boston, MA
“Deepak is one of the most insightful and dedicated
lawyers I have ever encountered. His passion for his
work manifests in every aspect of the cases he litigates.
On several occasions, I have read and discussed at
length multiple drafts of a single sentence in a brief.
One can see the result of such single-minded focus in
Deepak’s performance in the Supreme Court case of
AT&T v. Concepcion, in which an entire team of
lawyers was unable to match Deepak’s preparation for
and mastery of the case.” – Michael Page, Williams &
Connolly, Washington, DC
“Deepak is one of the nation’s most well-respected
consumer advocates. I’ve known Deepak for more than
15 years and, more recently, have worked with him on
several projects. In 2005, 2007, and 2010, he assisted
8-1 Filed 05/02/16 Page 15 of 83
Case 1:16-cv-00745-ESH
me in preparing to argue three cases before the U.S. Document
Supreme Court involving the federal regulation of
employer provided health insurance or retirement
benefits. Each time, Deepak’s input and advice was
invaluable. Subsequently, I watched as Deepak
litigated AT&T Mobility v. Concepcion before the
Court. I couldn’t image a better choice to represent the
interests of consumers in that landmark case. Deepak
is a fantastic attorney with a unique combination of
talent and experience.” – Peter Stris, Principal, Stris &
Maher, Los Angeles, CA
“Deepak is one of the most brilliant people I know. He
is an amazing writer who can say clearly what most
people write in a confusing manner. He is committed
to consumer issues and to businesses doing the right
thing. He is an effective appellate advocate who is a
force to be reckoned with. If you have an appeal that
you need help with or stakes are high and you need the
court to ‘get it right,’ call Deepak. You won’t go
wrong.” – Ronald Frederick, Frederick & Associates,
Cleveland, OH
“Gupta has a calm, comfortable manner that conveys
confidence [in oral argument.] . . . No one who knows
Gupta seems to doubt that he can make the case
against preemption.” – The National Law Journal
_______________________________________
Cases Briefed and Argued
U.S. Supreme Court Cases
Hernández v. Mesa (In the case of the cross-border shooting of an unarmed
Mexican teenager by a U.S. Border Patrol agent, does the Fourth Amendment
apply extraterritorially and does the officer enjoy qualified immunity?)
(counsel for petitioner)
Triple Canopy v. United States ex rel Omar Badr (Is a defense
contractor liable under the False Claims Act, on a “false certification” theory,
for defrauding the U.S. military out of $10 million dollars worth for security
services at an airbase in Iraq?) (counsel for respondents)
Zwicker & Associates v. Wise (whether the Noerr-Pennington doctrine
and the Petition Clause of the First Amendment preclude liability under the
Fair Debt Collection Practices Act for attorney conduct in collection litigation)
U.S. Legal Services Group v. Atalaese (Does the Federal Arbitration Act
prevent the New Jersey Supreme Court from declining to enforce an arbitration
agreement on the grounds that it fails to inform consumers that they are giving
up their right to go to court?) (counsel for successful respondents at petition
stage)
Penske v. Dilts (Does the federal law that deregulated the trucking industry
preempt longstanding state law requiring employers to provide meal and rest
breaks to employees?) (lead counsel for successful respondents at petition
stage)
8-1 Filed 05/02/16 Page 16 of 83
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 17 of 83
Spokeo v. Robins (To what extent does Congress have the power to create
injuries cognizable under Article III?) (lead counsel for respondent at petition
stage)
Texas Department of Housing v. Texas Inclusive Communities
Project (Are disparate-impact claims cognizable under the Fair Housing Act?)
(lead counsel for current and former Members of Congress, presenting
historical analysis ultimately adopted in the Court’s opinion)
Keiran v. Home Capital (Is written notice within three years of
consummation of the loan sufficient to exercise the right to rescind under the
Truth in Lending Act or does the consumer also need to sue for rescission
within that three-year period?) (lead counsel for petitioners)
Republic of Argentina v. NML Capital Ltd., 134 S.Ct. 2819 (2014)
(interpretation of sovereign bonds in litigation arising out of Argentina’s fiscal
crisis) (lead counsel for amicus Joseph Stiglitz, Nobel laureate in economics
and former President of the World Bank)
Mount Holly v. Mount Holly Gardens Citizens, 134 S. Ct. 636
(2013) (Are disparate-impact claims cognizable under the Fair Housing Act?)
(lead counsel for current and former Members of Congress)
Geneva-Roth Ventures v. Kelker, 134 S. Ct. 734 (2013) (Did the Montana
Supreme Court run afoul of the Federal Arbitration Act in refusing to enforce
an arbitration clause in an online payday loan contract?) (lead counsel;
obtained favorable settlement after filing brief in opposition but before Court’s
consideration of the petition)
Charvat v. First National Bank, 134 S. Ct. 1515 (2014) (To what extent does
Congress have the power to create injuries cognizable under Article III?) (lead
counsel for respondents; successful brief in opposition)
Catsimatides v. Irizarry, 134 S. Ct. 1516 (2014) (To what extent does the
Fair Labor Standards Act authorize personal liability for owners or officers of
corporate employers?) (lead counsel for respondents; successful brief in
opposition)
Zinni v. Convergent Outsourcing, 133 S. Ct. 2337 (2013) (Does a
defendant’s informal, unaccepted offer to settle a plaintiff’s Fair Debt
Collections Practices Act claims deprive a federal district court of jurisdiction
to decide those claims, where the defendant has neither tendered the offered
settlement amount nor agreed to entry of an enforceable judgment?) (cocounsel; successful brief in opposition)
McBurney v. Young, 133 S. Ct. 1709 (2013) (Does a state law restricting
public-records access to citizens of that state violate the Privileges and
Immunities Clause or dormant Commerce Clause of the U.S. Constitution?)
(lead counsel; briefed and argued on the merits)
American Express v. Italian Colors (In re American Express
Merchants Litigation), 133 S. Ct. 2304 (2013) (May an arbitration clause
preventing class-action litigation be held unenforceable where it would
effectively preclude any action seeking to vindicate the plaintiffs’ federal
statutory rights?) (co-counsel at certiorari and merits stage)
First American Financial v. Edwards, 132 S. Ct. 2536 (2012) (Do
consumers have Article III standing to seek statutory damages for a violation of
an anti-kickback statute where they allege kickbacks but no effect on the price
or quality of services?) (dismissed as improvidently granted) (co-counsel for
United States)
United States)
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 18 of 83
Freeman v. Quicken Loans, 132 S. Ct. 2034 (2012) (Does the Real Estate
Settlement Services Act prohibit a defendant from charging fees for services it
did not perform, or does the Act prohibit only arrangements in which the
defendant shares fees with another company?) (co-counsel for United States)
Mims v. Arrow Financial Services, 132 S. Ct. 740 (2012) (Do state and
federal courts have concurrent jurisdiction over private actions under the
Telephone Consumer Protection Act?) (lead counsel at petition stage;
successful petition for certiorari)
Compton Unified School District v. Starvenia Addison, 132 S. Ct. 996
(2012) (Are claims under the Individuals with Disabilities Education Act
limited to intentional conduct?) (lead counsel; successful brief in opposition)
AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) (Are state-law
decisions striking down class-action bans as unconscionable preempted by the
Federal Arbitration Act?) (lead counsel; briefed and argued on the merits)
Chase Bank USA v. McCoy, 131 S. Ct. 871 (2011) (Do Truth-in-Lending
regulations require notice of a credit-card rate increase, where the cardholder
agreement authorizes a maximum default rate?) (co-counsel at the merits
stage; lead counsel at petition stage)
Mills v. Midwest Title Loans, 131 S. Ct. 83 (2010) (Is an Indiana law
regulating car title loans unconstitutional extraterritorial regulation under the
dormant Commerce Clause?) (lead counsel for cert-stage amici)
U.S. Bank National Association v. Thomas, 130 S. Ct. 3504 (2010) (Are
state-law usury claims against federally insured state-chartered banks
completely preempted by the Federal Deposit Insurance Act?) (lead counsel for
respondents; successful brief in opposition)
Rent-a-Center v. Jackson, 130 S. Ct. 2772 (2010) (May an arbitration
agreement delegate the question of the arbitration agreement’s validity to the
arbitrator?) (co-counsel at merits stage)
Stolt-Nielsen v. Animalfeeds International, 130 S. Ct. 1758 (2010)
(Where the parties have asked the arbitrators to decide whether class
arbitration is permissible and the arbitrators have answered in the affirmative,
have the arbitrators exceeded their powers?) (amicus at merits-stage)
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 129 S. Ct.
2863 (2009) (Is ignorance of the law a complete defense to civil liabilty for
abusive collection practices?) (lead counsel for amici national consumer groups
at merits stage)
Cassens Transport Co. v. Brown, 130 S. Ct. 795 (2009) (May workers sue
their employers for workers’ compensation fraud, or are such suits reversepreempted by the McCarran-Ferguson Act?) (lead counsel for respondents;
successful brief in opposition)
Mohawk v. Carpenter, 130 S. Ct. 599 (2009) (Are denials of attorney-client
privilege claims immediately appealable through the federal courts?) (author of
successful merits briefing)
The Coffee Beanery v. WW, Welshans, and Williams, 130 S. Ct. 81
(2009) (May arbitration awards be vacated based on manifest disregard of the
law?) (lead counsel for respondents; successful brief in opposition)
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 19 of 83
Friends of Pinto Creek v. Carlota Copper Company, 129 S. Ct. 896
(2009) (Did the EPA’s issuance of a permit for an open-pit copper mine on one
of the nation’s most endangered rivers violate Clean Water Act regulations?)
(lead counsel for respondents; successful brief in opposition)
T-Mobile USA, Inc. v. Laster, 128 S. Ct. 2500 (2008) (Are decisions
striking down class-action bans as unconscionable under state law preempted
by Federal Arbitration Act?) (lead counsel for respondents; successful brief in
opposition)
R.J. Reynolds Tobacco Company v. Tuazon, 549 U.S. 1076 (2006) (Does
general jurisdiction based on sales-related contacts alone violate the Due
Process Clause?) (lead counsel; successful brief in opposition)
John Hancock Insurance Company v. Patten, 549 U.S. 975 (2006)
(Should the manifest-disregard-of-law standard for judicial review of
arbitration awards be narrowed?) (co-counsel, successful brief in opposition)
Garry Ioffe v. Skokie Motor Sales, Inc., 546 U.S. 121 (2006) (Does the
Motor Vehicle Safety and Information Act, also known as the Odometer Act,
extend to title fraud unrelated to mileage?) (unsuccessful petition for
certiorari)
Dolan v. United States, 546 U.S. 481 (2006) (To what extent does the
United States Postal Service have sovereign immunity from personal-injury
suits under the Federal Tort Claims Act?) (co-counsel, successful merits
briefing)
Jones v. Flowers, 547 U.S. 220 (2006) (Does due process require the state to
take additional steps to notify a property owner upon return of a certified-mail
notice of a tax sale or property forfeiture?) (co-counsel, successful petition for
certiorari and merits briefing)
Will v. Hallock, 546 U.S. 345 (2006) (Does the collateral-order doctrine
allow an interlocutory appeal from a decision denying the federal government’s
invocation of the Federal Tort Claims Act judgment bar?) (co-counsel,
successful merits briefing)
General Motors v. Delmas Ford, 546 U.S. 935 (2005) (Does the
application of one state’s law in a nationwide products-liability class action
violate the Commerce Clause or Due Process Clause?) (successful brief in
opposition)
Arpaio v. Demery, 545 U.S. 1139 (2005) (Do 24-hour Internet video
broadcasts of the activities of pretrial jail detainees violate their right to
substantive due process?) (successful brief in opposition)
Bayer AG v. Paul, 544 U.S. 919 (2005) (Do federal appellate courts have
jurisdiction to review remand orders where the reasons for remand are
different from those identified in the motion to remand?) (successful brief in
opposition)
SSA Gulf, Inc. v. Magee, 544 U.S. 904 (2005) (Does the Longshore and
Harbor Workers’ Compensation Act completely preempt state law?) (successful
brief in opposition)
Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005) (Can
an advertising program that all beef producers are compelled by the
government to support can be saved from invalidation as compelled speech on
the theory that it is government speech or commercial speech?) (amicus, merits
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 20 of 83
the theory that it is government speech or commercial speech?) (amicus, merits
stage)
Lockhart v. United States, 546 U.S. 142 (2005) (May the federal
government withhold a person’s Social Security disability benefits to collect on
old student loan debt?) (drafted successful petition for certiorari; case was
unsuccessful on the merits)
Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001) (May
a prisoner sue a private prison corporation under Bivens for violating his or her
constitutional rights under the Eighth Amendment?) (drafted ACLU’s amicus
brief)
State and Federal Appeals
In re NFL Concussion Litigation (3d Cir.) (lead appellate counsel to
34 former professional football players challenging the national class-action
settlement of claims that the NFL deliberately hid the effects of brain injuries
from concussions)
United States Telecom Ass’n v. FCC (D.C. Cir.) (representing intervenors
defending the FCC’s net neutrality rules) (counsel to Credo Mobile, Inc.,
Demand Progress, Fight for the Future, and ColorofChange.org, as part of a
coalition of intervenor tech companies and non-profit advocacy groups)
Wrenn v. District of Columbia (D.C. Cir) (opposed Second Amendment
challenge to District of Columbia’s restrictions on the public carrying of
firearms) (counsel to Everytown for Gun Safety, the nation’s largest gunviolence-prevention organization)
Chevron v. Donziger (2nd Cir.) (lead appellate counsel for U.S. lawyer
Steven Donziger, the principal defendant in Chevron Corporation’s RICO
action against Amazon communities and their advocates in an effort to
collaterally attack an $8.6 Billion Ecuadorian judgment holding Chevron
accountable for decades of pollution of an area of the rainforest the size of
Rhode Island) (pending)
Peruta v. County of San Diego (9th Cir.) (en banc) (opposing Second
Amendment challenge to California’s restrictions on the public carry of
firearms) (counsel to Everytown for Gun Safety)
Silvester v. Harris (9th Cir.) (opposing Second Amendment challenge to
California’s law imposing a 10-day waiting period on firearms purchases)
(counsel to Everytown for Gun Safety)
Expressions Hair Design v. Schneiderman (2nd Cir.) (defending a
victory in a constitutional challenge to New York’s credit-card surcharge law,
which Judge Rakoff struck down on First Amendment and vagueness grounds)
(briefed and argued)
Rowell v. Pettijohn (5th Cir.) (appeal challenging Texas’s credit-card
surcharge law on First Amendment and vagueness grounds) (briefed and
argued)
Dana’s Railroad v. Bondi (11th Cir.) (successful constitutional to Florida’s
credit-card surcharge law on First Amendment and vagueness grounds)
(briefed and argued)
Setara Tyson v. Sterling Rental (6th Cir) (defending favorable judgment
under Equal Credit Opportunity Act and cross-appealing on application of
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 21 of 83
common-law economic loss doctrine to state statutory claims).
Evankavitch v. Green Tree Servicing (3d Cir.) (successfully defended a
jury verdict in an appeal raising a question of first impression under the Fair
Debt Collection Practices Act: who bears the burden of proof as to whether a
collector’s phone calls fell within a safe harbor for contacts seeking location
information?) (briefed and argued)
Chen v. Major League Baseball (2nd Cir.) (retained to argue appeal over
whether Major League Baseball is exempt from the Fair Labor Standards Act)
(briefed and argued)
Moran v. The Screening Pros (9th Cir.) (retained to appeal a
decision striking down California’s Investigative Consumer Reporting Agencies
Act, one of the nation’s strongest protections against abuses by backgroundscreening companies, on due process vagueness grounds) (briefed and argued)
Kingery v. Quicken Loans (4th Cir) (retained to brief and argue appeal
concerning a question of first impression under the Fair Credit Reporting Act:
what does it mean for a mortgage lender to “use” a credit score so as to trigger
disclosure requirements?) (pending)
Cabral v. Supple (9th Cir.) (retained to defend a district court’s decision
certifying a class of purchasers of Supple, a fruit juice that claims to cure
arthritis) (briefed and argued)
Murphy v. DCI Biologicals, (11th Cir.) (retained to seek reversal of a
decision interpreting the Telephone Consumer Protection Act “prior express
consent” requirement to permit implied consent to autodialed text messages
based on an interpretation of Federal Communications Commission rulings)
(briefed and argued)
Hayes v. Delbert Services Corp. (4th Cir.) (retained to brief and argue
appeal over enforceability of internet payday lender’s “tribal arbitration”
scheme) (pending)
Ambridge v. Alaska Trustee (Alaska Supreme Court) (retained to defend a
decision holding that foreclosure activity is covered by the Fair Debt Collection
Practices Act and the state consumer-protection statute) (pending)
Mais v. Gulf Coast Collection Bureau, 768 F.3d 1110 (2014) (defended a
decision holding that routine hospital admission forms do not supply the
consent necessary to satisfy the Telephone Consumer Protection Act’s “prior
express consent” requirement under Federal Communications Commission
rulings)
Russell v. Absolute Collection Service, Inc., 763 F.3d 385 (4th Cir. 2014)
(successfully obtained decision affirming jury verdict in collection-abuse case
and rejecting argument that consumers must first make a dispute before
invoking the protections of the Fair Debt Collection Practices Act) (briefed and
argued)
Brady v. Deloitte & Touche LLP (9th Cir.) (retained to handle an
interlocutory appeal of a decision decertifying a class of salaried non-licensed
accounting firm employees alleging overtime violations) (briefed and argued)
Dreher v. Experian (4th Cir. 2014) (successfully defeated Experian’s
petition for interlocutory review, primarily on Article III standing grounds, of a
decision granting class certification in a Fair Credit Reporting Act action)
Dilts v. Penske, 769 F.3d 637 (9th Cir. 2014) (successfully obtained reversal
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 22 of 83
Dilts v. Penske, 769 F.3d 637 (9th Cir. 2014) (successfully obtained reversal
of a string of decisions holding that a provision of the California labor code
requiring meal and rest breaks is preempted, as applied to a class of truck
drivers, by the Federal Aviation Authorization Act of 1994–a transportation
deregulation measure that expressly preempts state law relating to “prices,
routes, or services”) (briefed and argued)
Clark v. Absolute Collection Service, Inc., 741 F.3d 487 (4th Cir. 2014)
(prevailed on appeal in a class action under the Fair Debt Collection Practices
Act on an issue that has divided the circuits: whether consumers may orally
dispute the validity of a debt or whether the statute imposes a writing
requirement) (briefed and argued)
Catsimatides v. Irizarry, 722 F.3d 99 (2nd Cir. 2013) (successfully obtained
published Second Circuit decision holding that New York billionaire John
Castimatides is personally liable–as an “employer” under the Fair Labor
Standards Act–for millions of dollars in wage-and-hour violations to a class of
workers at a chair of grocery stores that he owns; Castimatides is represented
on appeal by former Solicitor General Walter Dellinger) (briefed and argued)
Charvat v. Mutual First Federal Credit Union, 725 F.3d 819 (8th Cir.
2013) (successfully obtained published Eighth Circuit decision reversing
district court’s dismissal of two consumer class actions on the grounds that that
consumers lack injury-in-fact for purposes of Article III standing to pursue a
claim for statutory damages arising out of federal notice requirements) (briefed
and argued)
Cabala v. Crowley, 736 F.3d 226 (2nd Cir. 2013) (successfully obtained
published Second Circuit decision holding that a defendants’ offer of full relief
including attorneys’ fees –but lacking a formal offer of judgment — does not
moot or otherwise preclude the prevailing plaintiffs’ entitlement to further
fees)
Bayer v. Carrera, 727 F.3d 300 (3d Cir. 2013) (retained to prepare petition
for rehearing en banc seeking review of Third Circuit decision on
“ascertainability” in consumer products class actions and organize amicus
strategy; resulted in an unusual four-judge dissent from denial recommending
action by the Federal Rules Committee)
Manno v. Healthcare Revenue Recovery (11th Cir.) (successfully opposed
a petition for interlocutory review of a class certification decision)
Crouser v. BAC Home Loans Servicing LP (11th Cir.) (represented the
debtor in an appeal raising an unsettled question of bankruptcy law: whether
settlement proceeds from a violation of the automatic stay are the property of
the debtors’ Chapter 13 bankruptcy estate)
Soutter v. Equifax, 498 Fed.Appx. 260 (4th Cir. 2012) (retained, after the
completion of briefing, to argue opposite former Solicitor General Paul
Clement in this post-Wal-Mart appeal arising out of a Fair Credit Reporting Act
class action; defending a district court decision certifying a statewide class of
consumers whose credit reports indicated that they had outstanding judgments
when in fact those judgments had been vacated, satisfied, or dismissed)
(briefed and argued)
Grayson v. AT&T, 15 A.3d 219 (D.C. 2011) (en banc decision concerning
whether consumers must suffer injury-in-fact to sue under D.C.’s Consumer
Protection Act)
Lee v. Carter-Reed, 203 N.J. 496 (2010) (in a case concerning deceptive-
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 23 of 83
trade-practices claims against a dietary supplement manufacturer, the New
Jersey Supreme Court reversed the lower court’s denial of class certification
and adopted our brief’s analytical framework based on the economic concept of
“credence goods”) (counsel for amici curiae consumer groups)
Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (arguing that copyright does
not protect the character Holden Caulfield independently of the work in which
the character is fixed) (counsel for amicus curiae)
Pepper v. Routh Crabtree, 219 P.3d 1017 (Alaska 2009) (in case of first
impression nationwide, won reversal of lower court’s dismissal on grounds that
the First Amendment’s Petition Clause and the Noerr-Pennington doctrine
immunize unfair and deceptive trade practices carried out in the context of
litigation) (briefed and argued)
West v. Carfax, 2009-Ohio-6857 (Ohio App. 2009) (won reversal on appeal
of a nationwide class-action settlement) (briefed and argued)
Harris v. Mexican Specialty Foods, 564 F.3d 1301 (11th Cir. 2009) (won
reversal of lower-court decision striking down Fair Credit Reporting Act’s
statutory-damages provision as unconstitutional under the Due Process
Clause) (briefed and argued)
Danow v. Borack, 2009 WL 2883469 (11th Cir. 2009) (successfully
defended jury verdict in collection harassment case) (lead appellate counsel)
Picard v. Credit Solutions, Inc., 564 F.3d 1249 (11th Cir. 2009) (whether
the Credit Repair Organizations Act’s anti-waiver provision precludes
mandatory binding arbitration) (amicus)
New York State Restaurant Ass’n v. New York City Bd. of Health, 556
F.3d 114 (2nd Cir. 2009) (holding New York City’s regulation requiring posting
of calorie counts on fast food menus is not preempted by the Nutrition
Labeling and Education Act and does not violate the First Amendment’s
prohibition on compelled speech) (lead counsel for amici Congressman Henry
Waxman, former FDA Commissioner David Kessler, American Medical
Association, American Public Health Association, American Diabetes
Association, Center for Science in the Public Interest, and professors of
medicine, nutrition, and public health)
Del Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008) (won precedent
establishing that private government contractors may not be shielded by state
sovereign immunity under the Eleventh Amendment) (briefed and argued)
Sidun v. Wayne County Treasurer, 481 Mich. 503, 751 N.W.2d 453 (Mich.
2008) (won constitutional due-process challenge to foreclosure of client’s
home) (briefed and argued)
Reichert v. National Credit Systems, Inc., 531 F.3d 1002 (9th Cir. 2008)
(defeated a debt collector’s novel reliance-on-the-creditor defense to liability
under Fair Debt Collection Practices Act) (briefed and argued)
Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 940 A.2d 742 (Conn.
2008) (whether denials of class certification are appealable final orders under
the “death knell” theory) (briefed and argued)
Griffin v. Bierman, 403 Md. 186, 941 A.2d 475 (Md. 2008) (unsuccessful
constitutional due-process challenge to Maryland’s home mortgage foreclosure
procedures; in response to the decision, procedures were subsequently
reformed by the Maryland Legislature) (briefed and argued)
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 24 of 83
Jones v. Flowers, 373 Ark. 213 (Ark. 2008) (established, on remand from a
U.S. Supreme Court victory in a constitutional challenge to state tax foreclosure
procedures, that attorney’s fees may be recovered under federal civil rights law
even when the plaintiff’s original complaint did not cite the federal statute)
(briefed, co-counsel)
Rosario v. American Corrective Counseling Services, 506 F.3d 1039
(11th Cir. 2007) (won reversal of a lower-court decision dismissing a statewide
class action; the court, distinguishing its own prior precedent, held that a
private corporation under contract with Florida state prosecutors was not
entitled to state sovereign immunity under the Eleventh Amendment) (briefed
and argued)
Beuter v. Canyon State Professional Services, 261 Fed. Appx. 14 (9th
Cir. 2007) (successful appeal establishing that debt collectors cannot avoid
liability under the Fair Debt Collection Practices Act based on reliance on their
clients) (lead appellate counsel)
Danow v. Borack, 197 Fed.Appx. 853 (11th Cir. 2006) (obtained reversal of a
district court’s improper sua sponte dismissal of a consumer’s complaint of
telephone harassment by a debt collector) (lead appellate counsel)
Luessenhop v. Clinton County, 466 F.3d 259 (2nd Cir. 2006) (adopting
amicus brief’s argument that the federal Tax Injunction Act does not preclude
plaintiffs from bringing constitutional due-process challenges to state tax
foreclosure procedures in federal court) (amicus)
Stackhouse v. McKnight, 168 Fed. Appx. 464 (2nd Cir. 2004) (reversing
magistrate judge’s approval of a consumer class-action settlement on grounds
that objectors had not waived their right to decision by an Article III judge)
(briefed, co-counsel)
American Civil Liberties Union of Ohio v. Capitol Square Review
and Advisory Board, 243 F.3d 289 (6th Cir. 2001) (en banc) (co-authored
brief of Americans United for Separation of Church and State and AntiDefamation League as amici curiae in constitutional challenge to Ohio’s
Biblical motto)
Other Litigation:
Houser v. United States, 114 Fed.Cl. 576 (Fed. Cl. 2014) (as lead counsel for
a certified class of all federal bankruptcy judges in the United States, obtained a
judgment entitling class members to approximately $56 million in back pay
stemming from Congress’s violation of the Constitution’s Compensation
Clause; received President’s Award from National Conference of Bankruptcy
Judges)
Youth for Environmental Justice v. City of Los Angeles (Cal. Superior
Ct.) (action challenging city’s rubber-stamping of applications to drill oil in
urban neighborhoods and racially disparate imposition of conditions on
drilling)
Heldt v. Payday Financial LLC & Western Sky Financial LLC
(D.S.D.) (counsel to intervenors challenging nationwide class action
settlement of usury claims against tribal online payday lender)
Steele v. Lew (D.D.C.) (serve as interim class counsel, with Motley Rice
LLC, to a putative national class of approximately 700,000 tax-return
preparers challenging the Internal Revenue Service’s collection of millions of
dollars in fees absent statutory authority)
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 25 of 83
Expressions Hair Design, et al. v. Schneiderman, 975 F. Supp. 2d 430
(S.D.N.Y. 2013) (as lead counsel for a group of merchants, prevailed in a
constitutional challenge to New York’s credit-card surcharge law on First
Amendment, void-for-vagueness, and antitrust-preemption grounds)
Italian Colors v. Harris, Attorney General of California (E.D. Cal.)
(lead counsel to merchants challenging constitutionality of California’s creditcard surcharge law)
Rowell v. Abbott, Attorney General of Texas (W.D. Tex.) (lead counsel to
merchants challenging constitutionality of Texas’s credit-card surcharge law)
Dana’s Railroad Supply v. Bondi (N.D. Fla.) (lead counsel to merchants
challenging constitutionality of Florida’s credit-card surcharge law; case is
currently on appeal)
Breazeale v. Victim Services, Inc. (N.D. Cal.) (class action against forprofit debt collection company that rents out the prosecutors’ letterhead to
threaten consumers with criminal prosecution in an effort to collect civil debts)
Cavnar v. Bounceback (E.D. Wash.) (class action against for-profit debt
collection company that rents out prosecutors’ letterhead to threaten
consumers with criminal prosecution in an effort to collect civil debts)
First Premier Bank v. Evolution Finance (D.S.D.) (as lead counsel for a
consumer-review website accused of trademark infringement by a bank
specializing in subprime credit cards, mounted a First Amendment defense and
successfully defeated bank’s preliminary-injunction motion)
Animal Legal Defense Fund v. Wasden (D. Idaho 2015) (free speech and
equal protection challenge to Idaho’s “Ag Gag” law, intended to suppress covert
investigations of inhumane conditions at agricultural facilities) (counsel to
constitutional scholar Erwin Chemerinsky)
Neighborhood Assistance Corporation of America v. Consumer
Financial Protection Bureau, 907 F.Supp.2d 112 (D.D.C. 2012) (lead
counsel for CFPB in successful defense of regulations governing licensing of
mortgage loan originators against a challenge under the Administrative
Procedure Act and Fifth Amendment).
Koch Industries v. Does (Youth for Climate Truth), 2011 WL 1775765
(D. Utah 2011) (lead counsel in a successful First Amendment defense of
climate-change activists responsible for a spoof website and press release
concerning of Koch Industries’ position on climate change, accused by the
conglomerate of trademark infringement, cybersquatting, computer hacking,
or breach of contract)
Chamber of Commerce v. Servin (Yes Men) (D.D.C) (whether a parody
Chamber of Commerce press conference by climate-change activists constitutes
trademark infringement)
Public Citizen, et al v. Mukasey, 2008 WL 4532540 (N.D. Cal.) (lead
counsel for three national consumer groups in a successful APA unreasonabledelay suit against the U.S. Department of Justice, resulting in creation and
implementation of the National Motor Vehicle Title Information System)
Briggs v. Army & Air Force Exchange Service (N.D. Cal.) (obtained $7.4
Million settlement for a nationwide class of soldiers and veterans in a case
challenging the government’s illegal withholding of veterans’ federal benefits to
collect old debts arising out of purchases of military uniforms)
collect old debts arising out of purchases of military uniforms)
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 26 of 83
Rosario v American Corrective Counseling Services (M.D. Fla.),
Hamilton v. American Corrective Counseling Services (N.D. Ind.), and Del
Campo v. American Corrective Counseling Services (N.D. Cal.) (represented
statewide classes of consumers in Florida, Indiana, and California challenging
the abusive practices of a debt collector that operates collection programs
under contract with local prosecutors, using false threats of prosecution and
jail to coerce payment of collection fees)
Schwarm v. District Attorney Technical Services, 552 F. Supp. 2d 105
(E.D. Cal. 2008) (successfully represented a statewide class of plaintiffs in
California challenging the abusive practices of a debt collector that operated
collection programs under contract with local prosecutors)
New York State Restaurant Ass’n v. New York City, 509 F. Supp. 2d 351
(S.D.N.Y. 2007) and NYSRA v. NYC II, 2008 WL 1752455, stay denied, 545
F. Supp. 2d 363 (S.D.N.Y. 2008) (lead counsel for Congressman Henry
Waxman, former FDA Commissioner David Kessler, the American Medical
Association, the American Public Health Association, the American Diabetes
Association, other public health groups, and leading professors of medicine
and public health, as amici curiae, in defense of New York City’s calorie
labeling law against challenges based on federal preemption and First
Amendment)
Dynetech v. Leonard, 523 F. Supp. 2d 1344 (M.D. Fla. 2007) (successfully
represented two consumer-review websites in this Internet free speech dispute,
in which an infomercial company attempted to invoke trademark law to stifle
critical commentary about its questionable investment software products)
Association of Community Organizations for Reform Now v.
Federal Emergency Management Agency, 463 F. Supp. 2d 26 (D.D.C.
2006) (successfully represented survivors of Hurricanes Katrina and Rita in a
constitutional due process challenge to FEMA’s procedures for denying federal
disaster assistance)
_______________________________________
Speaking Appearances
American Law Institute, The Future of Aggregate Litigation, at NYU School of
Law, April 12, 2016
Annual Consumer Financial Services Institute, PLI, New York, April 4-5, 2016
Appellate Advocacy Seminar, Practicing Law Institute, New York, March 21,
2016
“High Stakes: Anticipating the Supreme Court’s Decisions in Tyson, Spokeo,
and Campbell-Ewald,” with Paul Bland and Scott Nelson, The Impact Fund
Class Action Conference, San Francisco, February 19, 2016
“Trial and Error: The NFL Concussion Settlement,” 92nd Street Y, New York,
February 2, 2016 (sponsored by the Forum on Law, Culture & Society at NYU
School of Law)
The Supreme Court at Midterm Conference, Stanford Law School, January 2930, 2016
ABA National Institute on Class Actions, panels on appellate advocacy and the
Supreme Court’s docket, New Orleans, October 17, 2015
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 27 of 83
“Barriers to Justice,” Yale ACS Conference on Law and Inequality, Yale Law
School, October 17, 2015
Testimony on before the U.S. House of Representatives, Committee on
Financial Services, “The Dodd-Frank Act Five Years Later,” September 17, 2015
“Supreme Court and Appellate Advocacy for the Little Guy,” Cosmos
Club, Washington, DC, September 16, 2015
Testimony before the U.S. Senate Judiciary Committee, Subcommittee on the
Constitution, “The Administrative State v. The Constitution: Dodd-Frank at
Five Years,” July 23, 2015
Film screening and panel discussion, “Lost in the Fine Print,” with Rep. Suzan
DelBene (D-WA), Nan Aron, Lorena Gonzalez, and Beth Terrell, Seattle, June
30, 2015
“Seeking and opposing discretionary review,” Appellate Advocacy Seminar,
Practicing Law Institute, New York, June 2, 2015
Roundtable on Consumer Arbitration, Center for the Study of Private Law, Yale
Law School, New Haven, April 8, 2015
“The Supreme Court, Article III Standing, and Class Actions,” Annual
Consumer Financial Services Institute, New York, April 6-7, 2015
“Appellate advocacy essentials: framing issues, briefing, and oral argument,”
National Consumer Law Center, presentation to seminar for experienced
consumer lawyers in fair debt collection cases, Washington, March 13, 2015
Panel discussion with U.S. District Judge Denise Cote (S.D.N.Y.), Professor
Sam Issacharoff (NYU Law) and John Beisner (Skadden Arps) on “The Future
of Class Actions,” New York City Bar, Federal Courts Committee, March 3,
2015
“Ascertainability,” a panel discussion with Elizabeth Cabraser and Scott
Nelson, Consumer Class Action Symposium, Tampa, Florida, Nov. 9, 2014
“Appellate strategies and developments,” with Brian Wolfman, National
Consumer Rights Litigation Conference, Tampa, Florida, Nov. 7, 2014
Panel discussion with Nan Aron (Alliance for Justice), Linda Lipsen (AAJ), and
Julianna Forlano accompanying D.C. premiere of “Lost in the Fine Print,”
Washington, DC, Oct. 9, 2014
“The First Amendment meets consumer finance, or ‘Don’t like your review:
Sue!’,” California State Bar, Aug. 21, 2014
“What plaintiffs’ lawyers need to know about appellate advocacy in an era of
conservative courts,” Inner Circle of Advocates Annual Meeting, Washington,
DC, August 14, 2014
“Recent Developments in the U.S. Supreme Court,” Class Action Litigation
Group, American Association for Justice Annual Convention, Baltimore, MD,
July 29, 2014
“Appellate Advocacy in Cases Seeking Corporate Accountability: Appealing to
Conservative Judges,” Business Torts Section, American Association for Justice
Annual Convention, Baltimore, MD, July 27, 2014
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 28 of 83
Law Seminars International’s 10th Annual Class Actions Conference, Seattle,
WA, June 12 & 13, 2014
“Seeking and Opposing Discretionary Review,” Practicing Law Institute’s 2014
Appellate Advocacy program, New York, May 8, 2014
Co-Chair, 18th Annual Consumer Financial Services Institute, Chicago, April
28-29, 2014
Guest lecturer on class actions and the Supreme Court, Cardozo Law School,
New York, NY, April 23, 2014
“2014 Great Conversations Roundtable: Reforming Non-Bank Financial
Institutions,” University of Maryland Law School, Baltimore, April 16, 2014
“Mass Claims and Class Claims in Arbitration,” Institute for Transnational
Arbitration of The Center for American and International Law and the
American Society of International Law, Washington, DC, April 9, 2014
Co-Chair, 18th Annual Consumer Financial Services Institute, New York, April
7-8, 2014
“Making the Fine Print Fair,” symposium at Georgetown Law, sponsored by the
Georgetown Consumer Law Society and Citizen Works, Washington, DC, April
4, 2014
“Supreme Court Review,” ABA National Conference on Equal Employment
Opportunity Law, Rancho Mirage, March 28, 2014
“Ascertainability as a Growing Threat to Class Certification,” The Impact Fund,
Annual Class Action Conference, Oakland, February 28, 2014
“Plaintiff-Side Appellate Advocacy,” lecture at Yale Law School, sponsored by
the American Constitution Society, New Haven, November 21, 2013
Debate with U.S. Senator David Vitter on the Consumer Financial Protection
Bureau and the Dodd-Frank Act, Lousiana Bar Association, New Orleans, LA,
November 15, 2013
“Regulatory Cases on the Supreme Court’s Docket,” panel with Tony Mauro,
Andy Pincus, and Rachel Brand, National Law Journal Regulatory Summit,
Washington, DC, November 13, 2013
National Consumer Law Center Class Action Symposium, Washington, DC,
November 10, 2013
“Appellate Advocacy for Consumer Advocates,” National Consumer Rights
Litigation Conference, Washington, DC, November 7, 2013
“Supreme Court Roundup: What The Court’s Latest Opinions Mean for the
World of Class Actions,” with Andy Pincus of Mayer Brown LLP, moderated by
Professor Suzette Malveaux, at the 9th Annual Class Actions Conference,
Washington, DC, October 4, 2013
Consumer Perspective, American Bar Association 4th Annual Institute on
Consumer Financial Services Basics at the University of Maryland Law School,
October 1, 2013
“Will Class Actions Survive the Roberts Court?,” lecture at Loyola Law School,
Chicago, September 27, 2013
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 29 of 83
“Supreme Court Labor and Employment Law Update,” Section of Labor and
Employment Law, American Bar Association Annual Meeting, San Francisco,
August 8, 2013
“Arbitration Developments,” Class Action Litigation Group, American
Association for Justice Annual Convention, San Francisco, July 23, 2013
“U.S. Supreme Court Developments in Civil Rights,” Civil Rights Section,
American Association for Justice Annual Convention, San Francisco, July 22,
2013
“American Express v. Italian Colors,” Law Seminars International program
with Archis Parasharami and Prof. Tom Stipanowich, July 23, 2013
“Dodd-Frank and Beyond,” panel with law professor Todd Zywicki and former
SEC Commissioner Kathleen Casey, Federalist Society’s First Annual Executive
Branch Review Conference, Washington, DC, June 11, 2013
“McBurney v. Young: the Supreme Court and Public Records Access,” seminar
with Chris Mohr and Yianni Pantis, Law Seminars International, May 22, 2013
Co-Chair, 18th Annual Consumer Financial Services Institute, Chicago, May 23, 2013
“The New Era of Arbitration,” 46th Annual Pacific Coast Labor and
Employment Conference, Seattle, April 25, 2013
“Public Law Practitioners,” panel at American University, Washington College
of the Law, April 10, 2013
Co-Chair, 18th Annual Consumer Financial Services Institute, New York, April
8-9, 2013
“Fair Lending,” American Bar Association, Business Section Spring Meeting,
April 5, 2013
“The Constitutional Challenge to the Consumer Financial Protection Bureau: A
Debate” (with C. Boyden Gray, and sponsored by the Georgetown Center on the
Constitution, the Federalist Society, and Consumer Law Society), Georgetown
Law, March 21, 2013
“Seeking and Opposing Discretionary Review in the U.S. Supreme Court and
State and Federal Appellate Courts,” 2013 Appellate Advocacy seminar,
Practicing Law Institute, New York, March 20, 2013
“Is the CFPB Constitutional?” (debate with C. Boyden Gray), American Bar
Association, Consumer Financial Services Committee, Naples, FL, January 7,
2013
“The U.S. Supreme Court and Arbitration Wars,” American College of Business
Court Judges, December 10, 2012
“The CFPB’s Amicus Program,” a joint Ballard Spahr and Gupta Beck webinar,
November 21, 2012
“Arbitration and the Supreme Court,” National Asian Pacific American Bar
Association, November 16, 2012
“Appellate and Supreme Court Advocacy on Behalf of Consumers” and
“Appellate and Supreme Court Advocacy on Behalf of Consumers” and
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 30 of 83
“Litigating Preemption,” Annual Consumer Rights Litigation Conference,
National Consumer Law Center, Seattle, October 25-28, 2012
“Stacking the Deck: Consumer Rights in the Financial Marketplace,” event
sponsored by Senator Al Franken, U.S. Senate, Washington, DC, October 17,
2012
“How to Win Consumer Cases on Appeal,” National Association of Consumer
Advocates, National Webinar, September 12, 2012
“Grappling with the Supreme Court’s Blockbuster Arbitration Cases,” Annual
Meeting of the American Bar Association, Chicago, August 3, 2012
“Litigating Preemption Issues,” Summer Mortgage Conference of the National
Consumer Law Center / National Association of Consumer Advocates,
Washington, DC, July 18, 2012
“Significant Changes in Consumer Law,” The Florida Bar Annual Convention,
Orlando, June 21, 2012
“Consumer Arbitration Update,” Teaching Consumer Law Conference, Center
for Consumer Law, University of Houston, May 18, 2012
Symposium on “AT&T v. Concepcion: One Year Later,” Cardozo Law School,
New York, April 26, 2012
Co-Chair, Annual Consumer Financial Services Institute, Practicing Law
Institute, New York, April 9-10 and Chicago, May 3-4, 2012 (sessions on
arbitration, preemption, and the CFPB)
“Fine Print, Federalism, and the Fate of the Class Action,” Public Lecture, John
Marshall Law School, Chicago, March 22, 2012 (also guest taught
administrative law class focused on agency design and CFPB)
“Federal Preemption Doctrine from a Consumer Perspective,” Symposium on
Mass Torts in the Federal Courts, Charleston, South Carolina, February 24,
2012
“Consumer Financial Protection After Dodd-Frank: The New Legislation’s
Enhanced Enforcement Structure,” New York City Bar, March 8, 2012
“Plenary Address: Life After Concepcion,” 20th Consumer Rights Litigation
Conference, Chicago, November 4, 2012
“The Future of Consumer Arbitration & Class Action Waivers,” ABA Business
Section, Boston, April 15, 2011
Faculty, PLI Annual Consumer Financial Services Institute, Chicago, March 31April 1, 2011
Guest Lecturer, University of Houston Law School, Houston, Texas, Mar. 28,
2011
“The Future of Arbitration,” George Washington University Law School, March
17, 2011
Guest Lecturer, Capital University School of Law, Columbus, Ohio, March 11,
2011
Guest Lecturer, University of Toronto Faculty of Law, Toronto, Canada, March
7, 2011
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 31 of 83
Faculty, PLI Annual Consumer Financial Services Institute, New York,
February 28-March 1, 2011
Speaker, “Arbitration and Class Actions,” Symposium on Consumer Class
Actions, Boston, November 14, 2010
“AT&T v. Concepcion: A Panel Discussion,” (with Randy Barnett, Brian
Wolfman, and Ira Rheingold), Georgetown University Law Center,
Washington, DC, November 9, 2010
“Appellate Advocacy From Desk to Podium, A Panel Discussion with
Washington’s Finest Appellate Advocates” (with David Frederick, Irv
Gornstein, Leondra Kruger, Cate Stetson, and Dori Bernstein), Georgetown
Law Barristers’ Counsel, October 27, 2010
“Consumer Law in the Supreme Court,” Consumer Law Society, Georgetown
University Law Center, September 2010
Guest Faculty (with Carter Philips and Robin Conrad), “The Business of
Justice: Corporate and Business Cases in the Roberts Court,” Summer Institute
on Law and Government, American University, June 2010
Guest lecturer (with Ralph Nader), “Topics in Consumer Protection,”
Washington College of Law, American University, June 2010
“Consumer and Civil Justice Cases in the U.S. Supreme Court: The October
2009 Term,” Conference on Teaching Consumer Law in the New Economy,
Center for Consumer Law, University of Houston, May 21-22, 2010
“Class-Silent Arbitration Clauses and Stolt-Nielsen: A View from the Supreme
Court,” American Bar Association, Section of Litigation Annual Conference,
New York, April 22, 2010
“The National Motor Vehicle Title Information System” National Consumer
Law Center, Webinar, Boston, March 18, 2010
Consumer Arbitration Study Group, American Bar Association, Section of
Dispute Resolution, Washington, DC, January 2010
“National Motor Vehicle Title Information System,” 18th Consumer Rights
Litigation Conference, National Consumer Law Center, Philadelphia,
November 2009
“Fighting for Consumer Justice: Challenges in a Changing Economy”
(moderator), Equal Justice Works Conference, Washington, DC, October 2009
“Arbitration: Has It Fulfilled Its Promises?” American Bar Association Annual
Meeting, Chicago, July 2009
“Ending Mandatory Arbitration: Strategies for Restoring Access to the Courts,”
Symposium on “The Future of Public Rights Litigation,” Fordham Law School,
New York, March 2009
“Consumer Fraud Class Actions on Life Support,” American Bar Association,
National Institute on Class Actions, Washington, DC, November 2008
“The Petition Clause, the Noerr-Pennington Doctrine, and Debt Collection
Litigation,” 17th Consumer Rights Litigation Conference, National Consumer
Litigation,” 17th Consumer Rights Litigation Conference, National Consumer
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 32 of 83
Law Center, Portland, OR, November 2008
“Conscientious Objectors: The Ethics of Representing Objectors to Class Action
Settlements” Symposium on Consumer Class Actions, National Consumer Law
Center, Washington, DC, November 2007
“Fair Debt Collection Practices Act Developments,” National Consumer Rights
Conference, Miami, November 2006
Edit
Gupta Wessler PLLC | 1735 20th Street, NW, Washington, DC 20009 | (202) 888-1741 | info@guptawessler.com
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 33 of 83
EXHIBIT B
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 34 of 83
Browse: Home » People » Jonathan E. Taylor
JONATHAN E. TAYLOR
jon@guptawessler.com
Tel. 202.888.1741 | Fax 202.888.7792 | 1735 20th Street, NW, Washington,
DC 20009
Jonathan E. Taylor is a principal
at Gupta Wessler PLLC in
Washington, DC, where he focuses
on representing plaintiffs and
public-interest clients in Supreme
Court,
appellate,
and
constitutional litigation.
Jon is from St. Louis and is a cum
laude graduate of Harvard Law
School. He joined the firm in 2012
following his clerkship with the
Honorable Ronald Lee Gilman of
the U.S. Court of Appeals for the
Sixth Circuit.
Since joining the firm, Jon has argued significant appeals before
the Supreme Court of Alaska and the U.S. Courts of Appeals for
the Ninth and Eleventh Circuits and has been a principal author
of dozens of briefs filed at all levels of the state and federal
judiciaries. His work has spanned a wide range of topics,
including the First Amendment, Second Amendment, Fourth
Amendment, Article III standing, class certification, civil rights,
administrative law, and a broad array of issues involving
consumers’ and workers’ rights. He has represented federal
judges, Members of Congress, classes of consumers and workers,
retail merchants, national nonprofit advocacy organizations,
former NFL players, and the family of a Mexican teenager killed
by a U.S. border guard.
Jon’s experience at the firm includes the following significant
matters:
Jon played a leading role in Houser v. United States (U.S.
Court of Federal Claims), in which the firm represented a
class of current and former federal bankruptcy judges and
their beneficiaries in a suit against the federal government
under the Constitution’s Judicial Compensation Clause. His
work helped obtain class certification and a $56 million
judgment on behalf of his clients. Jon also took the lead in
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 35 of 83
coordinating the administration of the class claims process
with the Department of Justice. The National Conference of
Bankruptcy Judges presented Jon with its President’s
Award for his work on the case. Summary Judgment Brief |
Complaint
Jon has played a key role in the firm’s briefing in Chevron v.
Donziger (Second Circuit), a RICO action brought by
Chevron in an effort to avoid paying an $8.6 billion
Ecuadorian judgment holding the company accountable for
decades of pollution of the Amazon rainforest. Among other
things, Jon drafted a brief on Article III standing that
garnered praise from commentators covering the case.
Opening brief | Reply Brief | Post-Argument Letter Brief |
Motion for Judicial Notice | Motion to Dismiss for Lack of
Subject Matter Jurisdiction | Reply in Support of Motion to
Dismiss | More Filings in This Matter
Jon has been a critical part of all of the firm’s First
Amendment challenges to state credit-card surcharge laws
brought in the wake of a $7 billion swipe-fee antitrust
settlement with the major credit-card companies. Jon’s
work helped obtain victories in California and Florida,
where courts struck down the laws as unconstitutional. The
cases are Expressions Hair Design v. Schneiderman
(Second Circuit), Dana’s Railroad Supply v. Bondi
(Eleventh Circuit), Rowell v. Pettijohn (Fifth Circuit), and
Italian Colors v. Harris (Ninth Circuit). Second Circuit
Brief | Eleventh Circuit Brief | Eleventh Circuit Reply |
Eleventh Circuit Opinion | Fifth Circuit Brief | Fifth Circuit
Reply | Ninth Circuit Brief | More Filings in These Matters
Jon has been a principal author of the firm’s briefing in the
U.S. Supreme Court in Hernández v. United States, a case
arising out of a close-range, cross-border shooting of an
unarmed Mexican teenager by a U.S. border patrol agent
standing on U.S. soil. The petition presents the question
whether the Constitution applies to unjustified killings that
occur at the U.S.-Mexico border, or whether border guards
may instead shoot unarmed civilians with impunity. The
Supreme Court has ordered the Solicitor General to respond
to the firm’s petition. Petition for Certiorari | Reply Brief |
Supplemental Brief
Jon currently represents three nonprofit legal organizations
(National Veterans Legal Services Program, National
Consumer Law Center, and Alliance for Justice) in their
challenge to the federal judiciary’s PACER fee structure as
excessive. The case, filed in April 2016, is National Veterans
Legal Services Program v. United States (District Court for
the District of Columbia). Complaint
Jon has played a leading role in the firm’s representation of
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 36 of 83
Jon has played a leading role in the firm’s representation of
34 former NFL players currently challenging the proposed
global settlement of all claims against the NFL related to
brain injuries caused by professional football. The case is In
re National Football League Players Concussion Injury
Litigation (Third Circuit). Opening Brief | Reply Brief
Jon has written amicus briefs on behalf of Everytown for
Gun Safety, the nation’s largest gun-violence-prevention
organization, in more than half a dozen Second Amendment
cases threatening common-sense gun laws, including
Peruta v. San Diego County (en banc Ninth Circuit), Wrenn
v. District of Columbia (D.C. Circuit), Kolbe v. Hogan (en
banc Fourth Circuit), Silvester v. Harris (Ninth Circuit),
and Peña v. Lindley (Ninth Circuit). The briefs in these
cases oppose challenges to public-carry regulations in
California and the District of Columbia, as well as
Maryland’s assault-weapons ban and California’s 10-day
waiting period and “microstamping” law. Peruta Amicus
Brief | Wrenn Amicus Brief | Kolbe Amicus Brief (en banc)
| Kolbe Amicus Brief (petition stage) | Silvester Amicus
Brief | Peña Amicus Brief
Jon has written two U.S. Supreme Court amicus briefs on
behalf of the co-sponsors of the Fair Housing Act of 1968
and other current and former Members of Congress,
explaining why Congress intended the Act to permit
disparate-impact liability. His work was quoted in a New
Yorker article discussing the issue. In June 2015, the
Supreme Court issued a surprise opinion upholding
disparate-impact liability, in which Justice Kennedy
adopted the firm’s historical analysis. Texas Department of
Housing Amicus Brief | Mount Holly Amicus Brief | U.S.
Supreme Court Opinion in Texas Department of Housing
Jon played a key role in the firm’s high-profile petition for
en banc review in Carrera v. Bayer (Third Circuit), a
controversial class-action case about the ascertainability
requirement. Jon’s efforts helped persuade four judges to
dissent from the denial of en banc review and to call on the
Federal Rules Committee to examine the issue. Jon has
continued to focus on ascertainability issues since Carrera,
most recently successfully opposing a petition filed by
former Solicitor General Paul Clement in Soutter v. Equifax
(Fourth Circuit). Carrera Petition | Soutter Answer to
Interlocutory Appeal Petition
Jon has been the lead author of briefs filed in a number of
important appeals concerning workers’ and consumers’
rights, including Alaska Trustee v. Ambridge (Supreme
Court of Alaska), in which he successfully obtained
a ruling that the Fair Debt Collection Practices Act covers
Case 1:16-cv-00745-ESH Document
foreclosures, and Mais v. Gulf Coast Collection Bureau 8-1 Filed 05/02/16 Page 37 of 83
(Eleventh Circuit), concerning the meaning of the
Telephone Consumer Protection Act’s “prior express
consent” requirement. He presented oral argument in both
cases. He also presented argument before the Ninth Circuit
in Koby v. ARS National Services, in which he argued a
novel question of class-action jurisdiction, objecting to the
ability of absent class members to consent to oversight by a
magistrate judge. Ambridge Brief | Alaska Supreme Court
Opinion in Ambridge | Oral Argument Video in
Ambridge | Mais Brief | Mais Answer to Interlocutory
Appeal Petition | Objector’s Brief in Koby | Objector’s Reply
Brief in Koby | Oral Argument Video in Koby
Jon was also a principal drafter in several other cases
concerning workers’ and consumers’ rights, such as Brady
v. Deloitte & Touche (Ninth Circuit), an appeal from
decertification of a class of unlicensed audit employees at
Deloitte & Touche who allege overtime violations; Kingery
v. Quicken Loans (Fourth Circuit), an appeal addressing
what it means for a credit-reporting agency to “use” a credit
score for purposes of the Fair Credit Reporting Act; Cole v.
CRST (Ninth Circuit), a petition involving the application of
the Supreme Court’s Tyson Foods decision to California
wage-and-hour class actions; and Dreher v. Experian
(Fourth Circuit), in which Jon twice helped defeat petitions
for interlocutory review raising questions of Article III
standing, class certification is statutory-damages cases, and
application of the Supreme Court’s decision in Safeco v.
Burr. Brady Reply Brief (other briefing in this case filed
under seal) | Cole Rule 23(f) Petition | Kingery Opening
Brief | Kingery Reply Brief | Dreher Answer to Rule 23(f)
Petition | Dreher Answer to § 1292(b) Petition
Jon was the primary draftsman of the firm’s brief opposing
certiorari in American Express v. Italian Colors (U.S.
Supreme Court), a major antitrust case asking whether
courts must enforce arbitration even when doing so would
preclude the plaintiffs from vindicating their federal
statutory rights. Jon also assisted the firm’s co-counsel,
former Solicitor General Paul Clement, in writing the merits
brief and helped coordinate amicus briefs in support of the
respondents filed by the United States, 22 States, and
various scholars, trade groups, and public-interest
organizations. Brief in Opposition
Jon was a primary drafter of amicus briefs filed on behalf of
leading nonprofit organizations in two important Supreme
Court cases. The first is Tyson Foods v. Bouaphakeo, in
which the Supreme Court adopted the firm’s argument for
why the Court should not decertify a class of workers at a
why the Court should not decertify a class of workers at a
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 38 of 83
slaughterhouse seeking overtime compensation improperly
denied to them. The second is Sheriff v. Gillie, in which the
firm represents three consumer-advocacy groups
supporting a challenge to debt-collecting law firms’
misleading practice of using Attorney General letterhead to
collect debts owed to the state constituted clear violations of
the Fair Debt Collection Practices Act. Brief of Nonprofit
Organizations in Tyson | U.S. Supreme Court Opinion in
Tyson | Brief of Consumer-Advocacy Groups in Gillie
Jon wrote an amicus brief on behalf of former Congressman
Patrick Kennedy, the author and lead sponsor of the Mental
Health Parity and Addiction Equity Act, in an important
test case concerning the Act’s scope, in which the Second
Circuit held that the Act applies to claims administrators.
The case is called New York State Psychiatric Association
v. UnitedHealth (Second Circuit). Amicus Brief of Former
Congressman Kennedy | Second Circuit Opinion
Jon helped draft the firm’s merits briefing in McBurney v.
Young (U.S. Supreme Court), a constitutional challenge
under the Privileges and Immunities Clause and dormant
Commerce Clause to a provision of the Virginia Freedom of
Information Act denying non-residents the same right of
access to public records that Virginia affords its own
citizens. Merits Brief for Petitioners | Merits Reply for
Petitioners
Before his judicial clerkship, Jon spent a year at Public Citizen
Litigation Group on a Redstone Fellowship from Harvard. While
there, Jon worked with Deepak Gupta to prepare for his Supreme
Court argument in AT&T Mobility v. Concepcion, served as
principal author of a Supreme Court amicus brief concerning the
False Claims Act, wrote a Ninth Circuit brief in a consumer case,
and helped advise a public-health nonprofit on federal
preemption of food-labeling laws. Jon also worked as an intern at
Public Citizen during law school, where he worked with Deepak
Gupta and Brian Wolfman on their successful Supreme Court
merits brief in Mohawk Industries v. Carpenter and assisted
with the brief filed on behalf of Senators John McCain and
Russell Feingold in Citizens United v. Federal Election
Commission.
Jon has previously worked on microfinance and antipoverty
issues in Ethiopia, studied Spanish in Chile, and helped prepare a
Medicaid fraud case against drug companies as an intern in the
Missouri Attorney General’s Office. During law school, he helped
teach legal writing as a member of the Board of Student Advisers,
competed in the Upper-Level Ames Moot Court Competition,
and had the Best Appellee Brief in his first-year legal writing
section. Jon received his undergraduate degree, magna cum
laude, from the University of Southern California, where he was
elected to Phi Beta Kappa, was awarded a Presidential
Case 1:16-cv-00745-ESH
elected to Phi Beta Kappa, was awarded aDocument 8-1 Filed 05/02/16 Page 39 of 83
Presidential
Scholarship, and was a National Merit Scholar. He is a member
of the bar of the District of Columbia and the Supreme Court of
the United States.
Gupta Wessler PLLC | 1735 20th Street, NW, Washington, DC 20009 | (202) 888-1741 | info@guptawessler.com
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 40 of 83
EXHIBIT C
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 41 of 83
Browse: Home » People » Rachel Bloomekatz
RACHEL BLOOMEKATZ
rachel@guptawessler.com
Tel. 202.888.1741 | Fax 202.888.7792
Washington Office: 1735 20th Street, NW, Washington, DC 20009
Ohio Office: 1148 Neil Avenue, Columbus, OH 43201
Rachel Bloomekatz is
a principal at Gupta
Wessler PLLC, where
she focuses on
Supreme Court,
appellate, and
complex litigation.
Rachel’s practice
draws on her
extensive appellate
experience in both the
public and private
sectors and insights
gained from her
clerkships with Justice Stephen Breyer of the U.S. Supreme
Court, Chief Justice Margaret Marshall of the Massachusetts
Supreme Judicial Court, and Judge Guido Calabresi of the U.S.
Court of Appeals for the Second Circuit.
Rachel has argued constitutional issues and complex appeals in
state and federal appellate courts nationwide, and she regularly
practices before the U.S. Supreme Court. She has handled cases
on a wide range of issues, including class actions, workers’ rights,
immigrants’ rights, juvenile justice, public health, and voter
protection.
Highlights of Rachel’s experience include:
Briefed and argued an Ohio Supreme Court appeal
challenging the 112-year sentence of a juvenile defendant on
Eighth Amendment grounds. Former Judge and Ohio
Supreme Court expert Marianna Brown Bettman reported:
Moore’s counsel, Rachel Bloomekatz was absolutely
spectacular—one of the best oral arguments I have
heard. She took control of the argument right from the
outset, carefully led the court away from the procedural
Case 1:16-cv-00745-ESH for the court as
hurdles, defined the jurisprudential issueDocument 8-1 Filed 05/02/16 Page 42 of 83
requiring a juvenile non-homicide offender (which she
repeatedly emphasized) a meaningful opportunity for
release, and stayed on message throughout. She was
clear, articulate, focused, and totally non-defensive, even
in the light of some very tough questioning.
Advised the City of Detroit on the reorganization of health
care policies and the intricacies of the Affordable Care Act
so as to maintain coverage for City retirees despite the City’s
bankruptcy.
In the litigation following the BP Deep Water Horizon Oil
Spill, defended class settlement administrator consultant
Brown Greer from attempts by BP to discredit its work
administering settlements to individuals and businesses
harmed by the oil spill.
Served as counsel to dozens of detained mothers and
children in immigration detention in Artesia, New Mexico,
and was the first attorney to obtain release for immigrant
children there under a novel theory using a class-action
settlement against the Immigration and Naturalization
Service from the 1990s.
Briefed and argued an appeal in a complex contracts matter
in the U.S. Court of Appeals for the Third Circuit, obtaining
reversal of decisions by the bankruptcy court and district
court.
In an environmental-protection and tax dispute, briefed
critical administrative-law issues in the Ohio Supreme
Court regarding a regional sewer district’s authority to
implement a comprehensive stormwater plan.
On behalf of women’s and veterans’ groups, filed a brief
asking the U.S. Supreme Court to overturn the Feres
doctrine, which prevents military families from obtaining
medical-malpractice recovery for birth injuries sustained by
children of active duty mothers (but not fathers) at military
hospitals.
Rachel joined Gupta Wessler in March 2016 from Jones Day,
where she was a member of that firm’s renowned Issues and
Appeals group. Previously, as an Assistant Attorney General in
Massachusetts, she defended the Commonwealth’s gun laws,
child protection statutes, and other state laws and regulations in
appellate courts.
Rachel is a magna cum laude graduate of Harvard University
Rachel is a magna Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 43 of 83
cum laude graduate of Harvard University
and a graduate of the Epstein Program in Public Interest Law
and Policy at UCLA. During law school, she worked at the
Southern Poverty Law Center, helping to litigate several class
actions under the Fair Labor Standards Act on behalf of
immigrant workers conducting post-Katrina cleanup operations
in New Orleans. She also worked at the Los Angeles civil rights
firm Hadsell Stormer and Rennick, fighting for housekeepers
denied breaks at LAX hotels, rocket scientists harmed by
discriminatory Bush-era security policies, and other workers,
employees, and whistleblowers.
During college, Rachel learned about the critical impact that law
can have on the lives of working families, immigrants, and
children while volunteering at the nation’s first Medical-Legal
Partnership at Boston Medical Center. She was inspired by a
small group of female attorneys hired by the Chairman of the
Pediatrics Department to help low income families address social
and legal issues that needed a lawyer (or an assertive college
student) rather than a doctor. This experience has always guided
her legal career.
Rachel divides her time between Washington, DC and Columbus,
Ohio, where she teaches a course on community lawyering as an
adjunct law professor at Ohio State University. She also serves as
an advisor to a number of progressive candidates and state
officeholders, and was the Legal Director for U.S. Senator
Sherrod Brown’s 2012 re-election campaign. She is a member of
the Board of Directors for Columbus Jewish Family Services and
serves on the executive board of the Columbus Chapter of the
American Constitution Society.
Gupta Wessler PLLC | 1735 20th Street, NW, Washington, DC 20009 | (202) 888-1741 | info@guptawessler.com
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 44 of 83
EXHIBIT D
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 45 of 83
Brian Wolfman
Professor of the Practice of Law
Co-Director, Supreme Court Litigation Clinic
bwolfman@law.stanford.edu
(mailto:bwolfman@law.stanford.edu)
650 498.8229 (tel:650 498.8229)
Room N136, Neukom Building
Download Curriculum Vitae (https://wwwcdn.law.stanford.edu/wp-content/uploads/2015/06/BrianWolfman-Resume-September-2015-1.pdf)
Expertise
Access to Justice
Class Actions & Mass Litigation
Complex Litigation
Employment Discrimination
Federal Courts & Federal Jurisdiction
Federalism
Separation of Powers
Supreme Court
Biography
Professor Wolfman joined the Stanford Law School faculty in 2014 in the school’s Supreme Court Litigation Clinic. Before coming to
SLS, Professor Wolfman taught at Georgetown Law, where he served as a co-Director of the law school’s Institute for Public
Representation, a student clinic that handles complex trial court and appellate litigation focused on civil rights and other public-interest
litigation. While at Georgetown, he also taught the standard doctrinal course on Federal Courts and the Federal System and a course
on appellate courts. Before Georgetown, he spent nearly 20 years at the national public interest law firm Public Citizen Litigation
Group, serving the last five years as the Group’s Director. Earlier in his career, he conducted trial and appellate litigation as a staff
lawyer at a rural poverty law program in Arkansas. Professor Wolfman has handled a broad range of litigation, including cases
involving health and safety regulation, class action governance, court access issues, federal preemption, consumer law, public
benefits law, and government transparency. He has argued five cases before the Supreme Court (winning four) and dozens of other
cases before federal and state appellate courts and trial courts around the country. He directed Public Citizen’s Supreme Court
Assistance Project, which helps “underdog” public interest clients litigate before the U.S. Supreme Court. He has testified before
Congress and federal rules committees on a wide range of issues, and he was an Advisor to the American Law Institute’s recentlypublished Principles of the Law of Aggregate Litigation. Since 2004, he has taught an intensive Appellate Courts Workshop during the
January Term at Harvard Law School. Professor Wolfman has authored articles on a variety of subjects, often on the intersection of
state tort law and federal preemption doctrine and class actions.
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 46 of 83
Related Organizations
Supreme Court Litigation Clinic (https://law.stanford.edu/supreme-court-litigation-clinic/)
Courses
Advanced Supreme Court Litigation Clinic (https://law.stanford.edu/courses/advanced-supreme-court-litigation-clinic/)
Supreme Court Litigation Clinic: Clinical Coursework (https://law.stanford.edu/courses/supreme-court-litigation-clinic-clinicalcoursework/)
Supreme Court Litigation Clinic: Clinical Methods (https://law.stanford.edu/courses/supreme-court-litigation-clinic-clinical-methods/)
Supreme Court Litigation Clinic: Clinical Practice (https://law.stanford.edu/courses/supreme-court-litigation-clinic-clinical-practice/)
Courses (https://law.stanford.edu/courses/?instructor=5174&page=1)
Publications (https://law.stanford.edu/publications/?primary_author=Brian%20Wolfman&page=1)
© Stanford University, Stanford, California, 94305-8610 | https://law.stanford.edu/directory/brian-wolfman/
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 47 of 83
BRIAN WOLFMAN
(301) 814-2138
bwolfman@law.stanford.edu
FULL-TIME LEGAL EMPLOYMENT
Stanford Law School, Stanford, CA
2014-present
Professor of the Practice of Law
Co-Director, Supreme Court Litigation Clinic
Co-teach student clinic that handles cases in the U.S. Supreme Court
Georgetown University Law Center, Washington, DC
2009-2014
Visiting Professor of Law
Co-Director, Institute for Public Representation
Headed civil rights and general public-interest law clinic that handles
federal trial and appellate litigation
Courses: Federal Courts and the Federal System and Appellate Courts
Public Citizen Litigation Group, Washington, DC
1990-2009
Director, Litigation Group, 2004-2009
General Counsel, Public Citizen, 2004-2009
Staff lawyer, Litigation Group, 1990-2004
Practice areas: Public interest Supreme Court and appellate litigation;
consumer health and safety; drug and medical device regulation; federal
preemption; class actions; access-to-the-courts litigation; freedom of
information and open government law; poverty law
Legal Services of Arkansas, Little Rock, AR
1985-1990
Staff lawyer for rural legal services program
Represented poor people in all areas of poverty law in state and federal courts
and before administrative agencies
U.S. Court of Appeals for the Eleventh Circuit, Macon, GA
Law clerk to Judge R. Lanier Anderson, III
1984-1985
PROFESSIONAL APPOINTMENTS
Institute of Medicine of the National Academies
2010-2011
Member, Committee on the Public Health Effectiveness of the FDA 510(k)
Clearance Process
Wrote report entitled “Medical Devices and the Public’s Health—The FDA 510(k)
Clearance Process at 35 Years”
American Law Institute, Philadelphia, PA
2004-2009
Advisor on the “Principles of the Law of Aggregate Litigation”
Member of expert panel of advisors regarding creation of comprehensive ALI
treatise on the law of class actions and other aggregate litigation
Page 1 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 48 of 83
Clients’ Security Fund of the District of Columbia Bar
1999-2004
Trustee, appointed by D.C. Court of Appeals for five-year term
Chair of Fund, 2003-2004; Vice-Chair, 2002-2003
Investigated and ruled on claims that D.C. Bar members took money or other
property entrusted to them by clients and others
Wasserstein Public Interest Fellow, Cambridge, MA
November 1993
Advised students at Harvard Law School on careers in public interest law
ACADEMIC APPOINTMENTS (ADJUNCT)
Harvard Law School, Cambridge, MA
Lecturer in Law
Teach course on appellate courts
2004-present
Vanderbilt University Law School, Nashville, TN
November 2008
Adjunct Professor and Distinguished Visiting Practitioner of Law
Taught course on public interest litigation
Washington College of Law, Washington, DC
Adjunct professor
Taught course on appellate courts and advocacy
Stanford Law School, Palo Alto, CA
Irvine Visiting Lecturer in Law
Taught appellate courts seminar
1997-2005, 2009
January 2001
Georgetown University Law Ctr., Washington, DC
Fall 1995, Fall 1997
Adjunct professor
Taught courses on professional responsibility and appellate advocacy
EDUCATION
Harvard Law School, J.D., 1984
University of Pennsylvania, B.A., 1978
PUBLICATIONS
“Mutual Pharmaceutical Co. v. Bartlett and Its Implications,” 82 U.S.L.W. (BNA)
___ (Nov. 5, 2013), and 41 Prod. Safety & Liab. Rptr. 1236 (BNA) (Oct. 14,
2013) (lead author)
“Judges! Stop Deferring to Class-Action Lawyers,” 2 U. Mich. J.L. Reform (online) 80A (2013)
“PLIVA v. Mensing and Its Implications,” 39 Prod. Safety & Liab. Rptr. (BNA)
972 (Sept. 5, 2011) (lead author)
“Wyeth v. Levine and Its Implications,” 37 Prod. Safety & Liab. Rptr. (BNA) 550
(May 11, 2009), and 24 Toxics Law Rptr. (BNA) 619 (May 21, 2009)
“Foreword: The National Association of Consumer Advocates—Standards and
Guidelines for Litigating and Settling Consumer Class Actions (Second
Edition),” 255 F.R.D. 215 (2009)
Page 2 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 49 of 83
“Why preemption proponents are wrong,” 43 Trial 20 (March 2007)
“What the Shutts Opt-Out Right Is and What It Ought to Be,” 74 U. Mo. K.C.
Law Rev. 729 (2006) (lead author)
“The FDA’s Argument for Eradicating State Tort Law: Why It Is Wrong and
Warrants No Deference,” 21 Toxics Law Rptr. (BNA) 516 (May 25, 2006), and
34 Prod. Safety & Liab. Rptr. (BNA) 308 (Mar. 27, 2006) (co-author)
“Bates v. Dow Agrosciences: Will the Lower Courts Finally Start Listening?” 33
Prod. Safety & Liab. Rptr. (BNA) 949 (Sept. 26, 2005) (co-author)
“Preventing the Subversion of Devlin v. Scardelletti,” 6 Class Action Litigation
(BNA) 453 (June 24, 2005)
“A Section-by-Section Analysis of the Class Action ‘Fairness’ Act,” 6 Class
Action Litigation (BNA) 365 (May 27, 2005) (co-author)
“Let a Hundred Cases Wither: Proposal to require opt-in class actions would
weaken consumers’ weapon, freeing companies to cheat again,” Legal Times 58
(May 9, 2005) (co-author)
“A real pick-up fix: Response to Thornburgh,” Legal Times, Aug. 6, 2001, A25
Monograph, Preemption Under the National Traffic and Motor Vehicle Safety Act
of 1966: Strategies for Plaintiffs’ Lawyers in Vehicle-Defect Cases (Independent
Counsel Resources 1998) (lead author)
“Preempting the preemption defense,” 34 Trial 54 (July 1998) (lead author)
“Preserving the Class Action by Fighting its Abuse,” 4 The Consumer Advocate
10 (May/June 1998)
“Foreword: National Association of Consumer Advocates—Standards and
Guidelines for Litigating and Settling Consumer Class Actions,” 176 F.R.D. 370
(1998)
“Class actions for the injured classes,” San Diego Union Tribune, Nov. 14, 1997,
B-11 (also published in San Francisco Daily Journal and Los Angeles Daily
Journal on October 17, 1997)
“Representing the Unrepresented in Class Action Settlements,” 71 N.Y.U. Law
Rev. 439 (1996) (lead author)
“Litigating Pre-emption Issues After Medtronic v. Lohr,” 11 Toxics L. Rptr. (BNA)
296 (Aug. 1996), and 24 Prod. Safety & Liab. Rptr. (BNA) 832 (Sept. 1996)
(abridged and amended versions also published in various state trial bar
periodicals) (lead author)
“Medtronic v. Lohr: Its Effect on Breast Implant Litigation,” Vol 4, No. 8, Med.
Legal Aspects of Breast Implants (July 1996)
Page 3 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 50 of 83
“Child Care, Work, and the Federal Income Tax,” 3 Am. Journ. Tax Pol. 153
(1984)
Contributions to ALSSC Reporter, the newsletter of the Arkansas Legal Services
Support Center, and op-ed pieces
CASEWORK
United States Supreme Court
(Not listed: extensive cert-stage work, including approximately 20 petitions
for certiorari and 30 oppositions to certiorari on which I was the principal
lawyer)
Green v. Brennan, No. 14-613 (U.S.) (pending) (when administrative filing period
commences for a Title VII constructive discharge claim) (lead counsel)
Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015) (whether federal Natural Gas
Act preempts state antitrust claims regarding market manipulation of retail
natural gas sales)
McBurney v. Young, 133 S. Ct. 1709 (2013) (whether state statute limiting right
of access to public records to citizens of the state violates Article IV’s Privileges
and Immunities Clause and the dormant commerce clause) (principal cocounsel).
U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (2013) (whether ERISA contact
abrogates equitable common-fund doctrine) (lead counsel for consumer
amicus)
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)
(whether the Anti-Injunction Act barred suit seeking to enjoin operation of the
Affordable Care Act) (principal co-counsel for amici former commissioners of
the Internal Revenue Service)
Elgin v. Department of Treasury, 132 S. Ct. 2126 (2012) (whether the Civil
Service Reform Act precludes a federal district court from granting a federal
employee equitable relief on a constitutional claim against that employee’s
federal employer) (principal co-counsel)
Minneci v. Pollard, 132 S. Ct. 617 (2012) (whether Bivens authorizes a suit for
damages alleging violations of the Eighth Amendment against employees of a
private prison corporation operating a federal prison) (principal co-counsel)
Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)
(whether New York’s ban on class actions in certain civil cases applies in
federal court under Hanna and Erie) (principal co-counsel)
Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100
(2009) (whether a district court’s rejection of a claim of attorney-client privilege
is immediately appealable under the collateral order doctrine) (principal cocounsel)
Page 4 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 51 of 83
Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008) (whether paralegal
services are reimbursable at market rates under the Equal Access to Justice
Act) (lead counsel)
Taylor v. Sturgell, 553 U.S. 880 (2008) (regarding federal common law and due
process limits on res judicata, particularly in “public law” litigation) (principal
co-counsel)
Warner-Lambert Co., LLC v. Kent, 552 U.S. 440 (2008) (equally divided court)
(whether state statute authorizing liability arising from prescription drugs,
where manufacturer deceived FDA in gaining marketing approval, is preempted
by federal law) (principal co-counsel)
Riegel v. Medtronic, Inc., 552 U.S. 312 (2008) (whether federal law preempts
state-law products liability claim arising from medical device that has received
FDA pre-market approval) (principal co-counsel)
Jones v. Flowers, 547 U.S. 220 (2006) (whether government has obligation,
under due process clause, to take additional reasonable steps to attempt notice
to homeowner before selling her property when mailed notice of tax sale is
returned unclaimed) (principal co-counsel)
Lockhart v. United States, 546 U.S. 142 (2005) (whether Debt Collection Act
permits federal government to offset a debtor’s social security benefits to collect
student loan debt that has been outstanding for more than 10 years) (lead
counsel)
Scarborough v. Principi, 541 U.S. 401 (2004) (whether statute of limitations
under fee-shifting statute applicable in actions against the federal government,
the Equal Access to Justice Act, is jurisdictional or, rather, is subject to
common-law equitable exceptions) (lead counsel)
Barnes v. Gorman, 536 U.S. 181 (2002) (whether punitive damages are
available under Title II of the Americans With Disabilities Act and section 504
of the Rehabilitation Act) (principal co-counsel)
Devlin v. Scardelletti, 536 U.S. 1 (2002) (whether an absent class member may
appeal approval of class action settlement to which he had timely objected
without first having intervened in action) (principal co-counsel)
Norfolk Southern Railway Company v. Shanklin, 529 U.S. 344 (2000) (whether
federal railroad laws and regulations preempt state-law tort claims alleging
inadequate warnings at railroad crossings) (principal co-counsel)
Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and
Human Resources, 532 U.S. 598 (2001) (whether “catalyst theory” authorizes
recovery of attorney’s fees under federal statutes that authorize awards to the
“prevailing party”) (lead counsel for amici Public Citizen and American Civil
Liberties Union)
Page 5 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 52 of 83
Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001) (whether federal
law preempts a state-law damages claim alleging injury from a regulated
entity’s fraud on a federal agency) (principal co-counsel for amicus Public
Citizen)
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999) (case concerning the
preemptive breadth of the Price Anderson Act amendments to the Atomic
Energy Act) (lead counsel for amici Public Citizen et al.)
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (whether class action
settlement seeking to resolve future asbestos personal-injury claims against
large segment of asbestos industry can withstand Rule 23, due process, and
justiciability challenges), aff’g Georgine v. Amchem Prods., Inc., 83 F.3d 610 (3d
Cir. 1996) (lead counsel for respondent labor union, asbestos worker, and
advocacy group litigants)
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (whether federal medical device
laws preempt state-law product liability claims) (lead counsel)
Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) (per curiam dismissal of writ)
(whether Rule 23 and due process require a right to opt out of a damages class
action) (co-counsel for amicus Public Citizen)
Shalala v. Schaefer, 509 U.S. 292 (1993) (procedural issue under federal
attorney’s fees statute) (lead counsel)
Ardestani v. INS, 502 U.S. 129 (1991) (whether federal fee-shifting statute
applies to certain administrative deportation proceedings) (principal co-counsel)
Melkonyan v. Sullivan, 501 U.S. 89 (1991) (precursor to Schaefer above) (lead
counsel)
Connecticut v. Doehr, 501 U.S. 1 (1991) (due process challenge to state statute
permitting ex parte attachment of real property) (principal co-counsel)
United States Courts of Appeals
Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014) (concerning the
standard for imputation of liability to employer based on third-party sexual and
racial harassment under Title VII) (principal co-counsel)
Day v. Persels & Assocs., LLC, 729 F.3d 1309 (11th Cir. 2013) (whether, and
in what circumstances, under the Magistrates Act and Article III of the
constitution, a non-Article III magistrate judge may enter a final appealable
judgment approving a class-action settlement) (sole counsel on relevant issues)
Hecht v. United Collection Bureau, 691 F.3d 218 (2d Cir. 2012) (whether to allow
a collateral attack on a class-action settlement on the basis of constitutionally
inadequate notice)
Page 6 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 53 of 83
McBurney v. Young, 667 F.3d 454 (4th Cir. 2012) (whether a state freedom of
information statute that gives only that state’s citizens the right to obtain
public records violates Article IV’s Privileges and Immunities Clause and the
dormant Commerce Clause) (principal co-counsel)
Klier v. Elf Atochem North America, Inc., 658 F.3d 468 (5th Cir. 2011) (whether
and in what circumstances the cy pres doctrine may be used to distribute left
over class-action settlement funds) (lead counsel)
McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010) (whether plaintiffs had
standing to bring constitutional challenge to Virginia law limiting use of
Virginia’s FOIA to Virginia citizens) (principal co-counsel)
Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865 (D.C. Cir.
2010) (whether Freedom of Information Act requires release of unredacted
versions of documents relevant to question of which government agencies were
permitted to bypass OMB’s legislative and budgetary clearance processes)
(principal co-counsel)
Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) (whether New York’s lawyer
advertising restrictions violate the First Amendment) (principal co-counsel)
Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237 (3d Cir. 2008) (whether
FDA’s statements concerning the risks of eating tuna preempts state-law
claims for damages from tuna-related mercury poisoning) (principal co-counsel)
Del Campo v. Kennedy, 517 F.3d 1070 (9th Cir. 2008) (whether private debt
collector working under contract with prosecutors was an “arm of the state”
entitled to Eleventh Amendment immunity) (principal co-counsel)
Owner-Operator Independent Drivers Ass’n, Inc. v. Federal Motor Carrier Safety
Admin., 494 F.3d 188 (D.C. Cir. 2007) (second challenge to Department of
Transportation regulations on commercial truck drivers’ hours of service)
(principal co-counsel)
Peoples v. CCA Detention Centers, 422 F.3d 1090 (10th Cir. 2005), effectively
aff’d by equally divided en banc court, 449 F.3d 1097 (10th Cir. 2006) (whether
Bivens authorizes an Eighth Amendment claim against a prison guard
employed by a private prison corporation under contract with the federal
government) (principal co-counsel)
Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety Admin.,
429 F.3d 1136 (5th Cir. 2005) (challenge to Department of Transportation
regulation on entry-level training for commercial truck drivers) (principal cocounsel)
In re Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir. 2005)
(whether and in what circumstances district courts have authority to abrogate
class members’ previously exercised opt-outs to bar opt-out clients from
consulting with their individually retained lawyers) (lead counsel)
Page 7 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 54 of 83
Public Citizen v. Federal Motor Carrier Safety Admin., 374 F.3d 1209 (D.C. Cir.
2004) (first challenge to Department of Transportation regulations on
commercial truck drivers’ hours of service) (principal co-counsel)
In re Orthopedic Bone Screw Prods. Liab. Litig. (Custer), 350 F.3d 360 (3d Cir.
2003) (whether defendant may be indemnified by class action settlement for
costs of defending and settling collateral attacks on that settlement) (lead
counsel)
Martin v. Medtronic, Inc., 254 F.3d 573 (5th Cir. 2001) (whether federal medical
device laws preempt state-law product liability claims) (lead counsel)
In re Orthopedic Bone Screw Prods. Liab. Litig. (Sambolin), 246 F.3d 315 (3d Cir.
2001) (whether notice and registration deadline in mass-tort class action
settlement comported with Rule 23 and due process) (lead counsel)
In re Telectronics Pacing Systems, Inc., 221 F.3d 870 (6th Cir. 2000) (whether
non-opt-out class action settlement comported with Rule 23 and due process)
(principal co-counsel)
Hart v. Bayer Corp., 199 F.3d 239 (5th Cir. 2000) (whether Federal Insecticide,
Fungicide and Rodenticide Act completely preempts state-law product liability
claims and thus establishes federal jurisdiction) (lead counsel)
Mitchell v. Collagen Corp., 126 F.3d 902 (7th Cir. 1997) (whether federal law
preempts state-law products liability claim arising from medical device that has
received FDA pre-market approval) (lead counsel on remand from Supreme
Court)
Dillon v. United States, 184 F.3d 556 (6th Cir. 1999) (en banc) (whether Federal
Rule of Appellate Procedure 3(c)’s requirement that notice of appeal name the
court to which appeal is taken is jurisdictional) (lead counsel for amicus)
Duhaime v. John Hancock Mut. Life Ins. Co., 183 F.3d 1 (1st Cir. 1999) (whether
class members in class action that has been settled can enter into sidesettlement of their claims without disclosure to, or approval by, district court
under Federal Rule of Civil Procedure 23) (lead counsel)
In re Prudential Ins. Co. of America Sales Practices Litig., 148 F.3d 283 (3d Cir.
1998) (justiciability and class certification challenge to nationwide class action
insurance fraud settlement) (lead counsel for arguing amicus Public Citizen)
Roberts v. Florida Power & Light, 146 F.3d 1305 (11th Cir. 1998) (whether statelaw-based tort claims are preempted by Price Anderson Act amendments to the
Atomic Energy Act) (lead counsel)
Bowling v. Pfizer, Inc., 132 F.3d 1147 (6th Cir. 1998) (challenge to fee award
methodology for post-settlement monitoring in common-fund class action) (lead
counsel)
Page 8 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 55 of 83
Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), aff’g Bowling v. Pfizer, Inc.,
922 F. Supp. 1261 (S.D. Ohio 1996), recon. denied, 927 F. Supp. 1036 (S.D.
Ohio 1996) (challenge to $33 million fee request in class action settlement
regarding defective heart valve implanted in 80,000 patients) (lead counsel)
Arent v. Shalala, 70 F.3d 610 (D.C. Cir. 1995) (challenge to regulations
concerning labeling of fresh fish and produce) (lead counsel)
In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d
768 (3d Cir.) (striking down class action settlement concerning 5.7 million
owners of allegedly defective GM trucks), cert. denied, 516 U.S. 824 (1995) (lead
counsel for objectors in Third Circuit; lead counsel in opposition to certiorari)
Jones v. Brown, 41 F.3d 634 (Fed. Cir. 1994) (interpretation of 1992 statute
applying fee-shifting statute to Court of Veterans Appeals) (follow-up to Karnas
below) (lead counsel)
Worm v. American Cyanamid Co., 5 F.3d 744 (4th Cir. 1993) (whether state-law
tort claims are preempted by the Federal Insecticide, Fungicide, and
Rodenticide Act (principal co- counsel)
Benavides v. Bureau of Prisons, 995 F.2d 269 (DC Cir. 1993) (whether federal
regulation denying access to certain medical records is lawful under the Privacy
Act and Freedom of Information Act) (lead counsel)
Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990), cert. denied, 500 U.S. 959
(1991), on remand, No. 92-1035 (5th Cir.) (due process challenge to federal
regulation denying right to cross-examine author of adverse medical report in
social security disability hearing) (lead counsel in Supreme Court and on
remand)
Miles v. Metropolitan Dade County, 916 F.2d 1528 (11th Cir. 1990), cert. denied,
502 U.S. 898 (1991) (challenge to housing authority policy imposing costs on
tenants in non-meritorious eviction proceedings) (lead counsel in Supreme
Court)
Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1991) (challenge to below-market
attorney’s fees recoveries in social security cases) (sole counsel)
United States District Courts
Batson v. Branch Banking and Trust Co., 2012 WL 4479970 (D. Md. 2012)
(religious accommodation and discrimination case under Title VII of the Civil
Rights Act of 1964) (lead counsel).
Nicholls v. U.S. Office of Personnel Management, 863 F. Supp. 2d 4 (D.D.C.
2012) (concerning the scope of agency responsibilities to respond to requests
for public records under the Freedom of Information Act) (sole counsel)
Benavides v. Bureau of Prisons, 774 F. Supp.2d 141 (D.D.C. 2011) (concerning
availability of digital recordings of inmate-lawyer phone calls under Freedom
of Information Act) (sole counsel)
Page 9 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 56 of 83
Brigham v. Office of Workers Compensation Programs, 477 F. Supp.2d 160
(D.D.C. 2007) (whether Energy Employees Occupational Illness Compensation
Program Act applies to clean-up efforts at nuclear and other facilities operated
by or under contract with Department of Energy) (principal co-counsel)
In re American Historical Ass’n, 49 F. Supp.2d 274 (S.D.N.Y. 1999) (whether
Alger Hiss grand-jury records should be made public in light of Federal Rule
of Criminal Procedure 6(e)) (principal co-counsel)
Duhaime v. John Hancock Mut. Life Ins. Co., 2 F. Supp.2d 175 (D. Mass. 1998)
(whether and under what circumstances fees can be awarded to objectors to
class action settlement if their efforts improve the settlement for class as a
whole) (lead counsel for objectors)
Duhaime v. John Hancock Mut. Life Ins. Co., 989 F. Supp. 375 (D. Mass. 1997)
(whether fees to class action plaintiffs’ counsel should be staged to align
interests of lawyers and clients) (principal co-counsel for objectors)
Public Citizen v. Shalala, 932 F. Supp. 13 (D.D.C. 1996) (challenge to FDA
exemption for restaurant menus under nutrient-content and health claims
provisions of federal food labeling law) (lead counsel)
In re Ford Motor Co. Bronco II Prods. Liab. Litig., 1995 U.S. Dist. Lexis 3507 (E.D.
La. 1995) (challenge to class action settlement in case affecting owners of
rollover-prone Bronco II vehicle) (lead counsel for objectors)
South Dakota v. Madigan, 824 F. Supp. 1469 (D.S.D. 1993), appeals dismissed,
Nos. 93-2869, et al. (challenge to federal policy adversely affecting food stamp
benefits of low-income housing residents) (lead counsel)
Bowling v. Pfizer, Inc., 143 F.R.D. 141 (S.D. Ohio 1992) (represented objector
Public Citizen in seeking improvements to worldwide class-action settlement
concerning defective heart valve implanted in 85,000 patients) (lead counsel)
Larry v. Yamauchi, 753 F. Supp. 784 (E.D. Ark. 1990) (precursor to South
Dakota v. Madigan) (lead counsel)
Tolson v. Sheridan School Dist., 703 F. Supp. 766 (E.D. Ark. 1988) (whether
termination of public employee violated Fourteenth Amendment’s Due Process
Clause) (sole counsel)
Other reported federal cases
Williams v. Patterson, 1988 WL 124742 (E.D. Ark. 1988) (class action challenge
to regulation that included recoupments of public benefit overpayments as
“income” to food stamp recipients) (sole counsel)
Scarborough v. Nicholson, 19 Vet.App. 253 (Vet.App. 2005) (attorney’s fees
litigation on remand from Supreme Court) (lead counsel)
In re Kissinger, 106 B.R. 180 (E.D. Ark. Bankr. 1989) (whether debtor met
standards for non-discharge of consumer debt in bankruptcy on ground of
fraud) (sole counsel)
Page 10 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 57 of 83
Representative state court sases
Texas Riogrande Legal Aid, Inc. v. Education and Workforce Development Cabinet
of Ky., 2010 WL 4316924 (Ky. Cir. Ct. 2010) (whether state regulation barring
public access to records of growers who employ migrant workers is invalid
under state and federal law) (lead counsel)
Conte v. Wyeth, Inc., 168 Cal.App.4th 89 (Cal.App. 2008) (whether name-brand
prescription drug manufacturers have a duty of care to patients who are
prescribed the generic version of their drugs) (lead counsel)
In re Hager, 812 A.2d 904 (D.C. 2002) (bar disciplinary case regarding ethical
obligations of lawyers in class action-like setting, in particular regarding
whether ethical rules demand disgorgement of ill-gotten attorney’s fees) (lead
counsel for Public Citizen)
R.F. v. Abbott Laboratories, 745 A.2d 1174 (N.J. 2000) (whether federal law
preempts state-law claim that defective HIV screening test resulted in plaintiff’s
HIV infection) (lead counsel)
R.T., et al. v. Patterson, 301 Ark. 400 (1990), on remand, No. 87-2689 (Pulaski
Cty., Ark. Chancery, 3rd Div.) (challenge to operation of various aspects of
Arkansas foster care system) (co-counsel for class)
Garibaldi v. Dietz, 25 Ark. App. 136 (1988) (en banc) (standards for termination
of parental rights of mentally ill, but medically controlled, parent) (sole counsel)
Representative unreported litigation
Eley v. Gov’t Printing Office, No. 09-2158 (D.D.C.) (Title VII challenge to raceand retaliation-based non-promotion)
Briggs v. United States, No. CV-07-5760 (N.D. Cal.) (class action challenge to
government agency’s practice of debt collection beyond the applicable statute
of limitations) (co-counsel for class)
Hayden v. Atochem North America Inc., No. 99-20249 (5th Cir. Feb. 21, 2000)
(challenge to mandatory personal-injury class action concerning arsenic
exposure) (lead appellate counsel for objectors)
Karnas v. Derwinski, No. 92-7046 (Fed. Cir.) (appeal concerning whether
attorney’s fees are available to prevailing claimants in cases before new Court
of Veterans Appeals) (lead counsel)
People With AIDS Health Group v. Burroughs Wellcome Co., No. 91-574-JGP
(D.D.C) (consumer challenge to validity of AZT patent) (lead counsel)
Gulley v. Patterson, No. LR-C-88-563 (E.D. Ark.) (class action challenge to
Arkansas policies regarding the child support “pass through” for AFDC
recipients) (sole class counsel)
Page 11 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 58 of 83
Blundell v. Sharp, No. PB-C-86-268 (E.D. Ark.) (class action challenge to
operation of housing project, claiming violations of right to privacy and other
constitutional, statutory, regulatory, and common-law rights) (sole class
counsel)
Public Citizen, Inc. v. Shiley Incorporated, No. C755862 (Los Angeles Sup. Ct.),
aff’d, No. B051171 (Cal. Ct. App., 2d Dist.) (case under California consumer
protection laws seeking worldwide notification of patients implanted with
defective heart valve) (lead counsel)
PRESENTATIONS/SPEECHES AT ACADEMIC AND EDUCATIONAL SEMINARS
The Impact Fund, 2015 13th Annual Class Action Conference, “Protecting
Your Plaintiffs and the Class: Rule 68 and Other Pick-Off Tactics,” Berkeley,
CA, February 27, 2015
National Consumer Law Center, Consumer Rights Litigation Conference, Class
Action Symposium, “Ethics Update: The 2014 Edition of the NACA Consumer
Class Action Guidelines” and “The Economics of Objecting for All the Right
Reasons,” Tampa, November 8, 2014
National Consumer Law Center, Consumer Rights Litigation Conference, “How
Appellate Developments and Strategies Will Affect Your Practice,” Tampa,
November 7, 2014
Court of Appeals for Veterans Claims Bar Association, Annual Conference,
“Attorney Fees Panel,” Washington, DC, June 6, 2014
National Consumer Law Center, Consumer Rights Litigation Conference,
“Class Action Developments and Roundtable” and “How Appellate
Developments and Strategies Will Affect Your Practice,” Washington, DC,
November 7, 2013
National Consumer Law Center, Consumer Rights Litigation Conference,
“Recent Appellate Decisions That Will Affect Your Practice,” Seattle, October
26, 2012
Egyptian American Rule of Law Association (and others), “Rule of Law:
Rhetoric vs. Reality in Egypt’s Transition to Democracy” (discussing
comparative open government law), Washington, DC, October 10, 2012
Association of the Bar of the City of New York, “Supreme Court – A Year in
Review,” New York, July 18, 2012
National Association of Appellate Court Attorneys, “When Should Judges Raise
Issues Sua Sponte,” Washington, DC, July 17, 2012
The District of Columbia Bar, Antitrust and Consumer Law Section, “Recent
Developments in Mandatory Arbitration,” Washington, DC, April 3, 2012
The Food & Drug Law Inst., “An FDLI Dialogue: A First Look at the IOM Study
of the 510(k) Clearance Process,” Washington, DC, August 4, 2011
Page 12 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 59 of 83
Association of the Bar of the City of New York, “Supreme Court – A Year in
Review,” New York, July 20, 2011
George Washington University Law School, “Can the Google Books Settlement
Be Fixed? — A Roundtable Discussion Among Experts,” Washington, DC,
June 15, 2011
George Washington University Law School, “The Future of Arbitration:
Channeling Class Actions into Single Claims Arbitrations,” Washington, DC,
March 17, 2011
Georgetown Consumer Law Society & the American Constitution Society,
“AT&T v. Concepcion: Supreme Court Oral Argument Recap & Panel
Discussion” (moderator), Washington, DC, November 10, 2010
Uniform Law Commission and George Washington University Law School,
“Federalism, Preemption and State Law: Legislating Areas of Shared Federal
and State Interest,” Washington, DC, October 29, 2010
Georgetown University Law Center, Supreme Court Institute Annual Press
Briefing, “Anticipating the Supreme Court’s October Term 2010: What to
Expect,” Washington, DC, September 20, 2010
Association of the Bar of the City of New York, “Supreme Court – A Year in
Review,” New York, July 21, 2010
National Center for State Courts, General Counsel Business Meeting,
“Regulatory Preemption: Erosion of State Tort Law or Protection of the
National Economy,” Washington, DC, November 19, 2009
University of Maryland School of Law, Emerging Issues in Food & Drug Law,
A National Conference for Lawyers, Policy-Makers, and Corporate Leaders,
“Preemption and the Impact of Riegel v. Medtronic and Wyeth v. Levine on Drug
and Device Labeling,” Baltimore, November 16, 2009
American Bar Association, Section of Litigation, Current Issues in
Pharmaceutical and Medical Device Litigation, “Preemption: What’s Happening
in Congress to Change the Landscape?,” Kenilworth, NJ, November 12, 2009
National Consumer Law Center, Consumer Rights Litigation Conference, Class
Action Symposium, “Shady Grove and Naked Class Action Bans: The Emerging
Conflicts Between Federal and State Laws on Class Certification, Multistate
Classes and Choice of Law Issues,” Philadelphia, October 25, 2009
National Consumer Law Center, Consumer Rights Litigation Conference,
“Class Action Roundtable,” Philadelphia, October 22, 2009
National Foundation for Judicial Excellence, Fifth Annual Judicial
Symposium, “Mapping the Legal Frontier: The Uncertain Boundary Between
Federal and State Law, The Role of State and Federal Courts in Federal
Preemption Cases—A Spirited Discussion Between Adversaries at the Bar,”
Chicago, July 11, 2009
Page 13 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 60 of 83
American Constitution Society Annual Convention, “The Future of the Civil
Jury System,” Washington, DC, June 19, 2009
Biotechnology Industry Organization Annual Convention, “Preemption of
Product Liability Litigation on FDA-Regulated Products,” Atlanta, May 19,
2009
Bureau of National Affairs Audio Conference, “Planning for a Post-Levine
World: Implications and Strategies for Manufacturers, U.S. Consumers and
the Courts,” May 12, 2009
The Federal Circuit Bar Association, Horizons Seminar Series, “The Equal
Access to Justice Act: History, Principles and Practice,” Washington, DC,
October 22, 2008
Stanford Law School Chapter of American Constitution Society, “Social Justice
on Appeal: Progressive Appellate Litigators in the 21st Century,” Stanford,
California, September 3, 2008
University of Arkansas School of Law, “Public Interest Advocacy Before the
U.S. Supreme Court,” Fayetteville, Arkansas, March 3, 2008
American Enterprise Institute, “Federal Preemption and the Supreme Court,”
Washington, DC, February 21, 2008
New York State Bar Association, Annual Meeting of the Food, Drug and
Cosmetic Law Section, Panel on “Preemption (Drug and Device),
Understanding Tort Preemption Claims,” New York, January 31, 2008
National Consumer Law Center, Class Action Symposium, Panel on Whether
Reliance is an Element in UDAP Cases, Washington, DC, November 11, 2007
National Consumer Law Center, Consumer Rights Litigation Conference,
“Class Action Roundtable,” Washington, DC, November 8, 2007
American Bar Association, “The Supreme Court: Good for Business?” (national
teleconference), October 17, 2007
Environmental Law Institute, “Access to Courts After Massachusetts v. EPA:
Who Has Been Left Standing?,” Washington, DC, May 3, 2007
National Association of Attorneys General, 2007 Consumer Protection
Seminar, “The Nuts and Bolts of Briefing Preemption Cases,” Washington, DC,
May 1, 2007
George Washington University Law School, Consumer Class Action
Symposium, “Consumer Class Actions: Perspectives, Opportunities and
Problems,” Washington, DC, March 28, 2007
National Association of Attorneys General, Administrative Law and
Preemption: Administrative Law for State Attorneys Handling Preemption
Cases, “Practical Advice on Litigating Preemption Cases Involving Federal
Agencies,” Washington, DC, March 7, 2007
Page 14 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 61 of 83
National Consumer Law Center, Class Action Symposium, “Shutts, Rule 23,
and Other Class Action Issues,” Miami, November 13, 2006
National Consumer Law Center, Consumer Rights Litigation Conference,
“Litigating Consumer Cases in the Supreme Court,” Miami, November 12,
2006
American Bar Association, Section of Administrative Law and Regulatory
Practice, Annual Meeting, “Federal Agency Preemption of State Tort Law,”
Washington, DC, October 26, 2006
University of Missouri at Kansas City, Symposium Commemorating 20th
Anniversary of Phillips Petroleum v. Shutts, The Right to Opt Out and Rule 23
Reform, Kansas City, Missouri, April 7, 2006
National Consumer Law Center, Class Action Symposium, Panel on the Class
Action Fairness Act of 2005, Minneapolis, October 30, 2005
National Hispanic Bar Association National Convention, “The Class Action
Fairness Act of 2005: How Does It Affect Your Practice” (moderator),
Washington, DC, October 18, 2005
American Bar Association, Section of Litigation, The 9th Annual National
Institute on Class Actions, “Class Actions in the Marble Palace: What if the
Supremes Took on Rule 23(b)(2)?” (argued objector-petitioner’s position in
moot court before panel of federal judges and lawyers), Chicago and San
Francisco, September 23 and October 7, 2005
Association of Trial Lawyers of America, National College of Advocacy, “The
Class Action ‘Fairness’ Act: What Does This Mean For Your Practice,” National
Electronic Seminar, March 3, 2005
National Consumer Law Center, Consumer Rights Litigation Conference,
“Class Action Settlements in Mortgage Lending Cases: Ethical Responsibilities
and Practical Considerations,” Washington, DC, November 7, 2004
Federal Trade Commission, Protecting Consumer Interests in Class Actions,
“Special Ethics Concerns in Class Action Litigation,” Washington, DC,
September 13, 2004
American Bar Association, Section of Litigation, The 7th Annual National
Institute on Class Actions, “Who Moved My Rule 23?” Washington, DC,
November 7, 2003
National Association of Attorneys General, 2003 Fall Consumer Protection
Seminar, Class Actions and the Hager Case, Washington, DC, October 22,
2003
Virginia Trial Lawyers Association Conference, 2003 Products Liability and
Accident Prevention Retreat, “Class Actions, the FDA, and Federal
Preemption,” Williamsburg, Virginia, October 17, 2003
Page 15 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 62 of 83
District of Columbia Bar, Annual Conference, “Secret Settlements: Should the
Ground Rules Be Changed?” Washington, DC, March 28, 2003
National Association of Insurance Commissioners, State Insurance Regulation:
Successes, Challenges, and Opportunities, “Class Action Litigation Panel,”
Washington, DC, February 27, 2003
American Bar Association, Section of Litigation, The 6th Annual National
Institute on Class Actions, “Overlapping and Competing Class Actions,” New
York and Chicago, November 1 and 15, 2002
National Consumer Law Center, Consumer Class Action Seminar, “Class
Action Management and Attorneys Fees” (Attorney Fee Auctions), Baltimore,
Maryland, October 29, 2001
Advisory Committee on Civil Rules, Class Action Conference, “Settlement
Review,” Chicago, Illinois, October 22-23, 2001
Harvard Law School—Harvard Journal on Legislation, “Social Reform Through
the Class Action,” Cambridge, Massachusetts, March 14, 2000
FDLI 43rd Annual Educational Conference, “Should Compliance With FDA
Requirements Bar Recovery Of Tort Damages For Harm Resulting From The
Use Of An FDA-Regulated Product?” Washington, DC, December 17, 1999
FDLI Law Symposium, “Regulatory Compliance: Should It Be A Bar To Tort
Liability?” (commenter on series of papers), Georgetown University Law Center,
Washington, DC, October 8, 1999
National Grants Management Association Annual Meeting, Panel Discussion
on Ethics of Government Lawyers, Bethesda, Maryland, May 12, 1999
The Federalist Society, 1998 National Lawyers Convention, “Class Action
Litigation: Is Reform Needed Before American Business is Strangled?”
Washington, DC, November 13, 1998
ABA Annual Meeting, “Hot Issues in Class Action Litigation” (argued objectorappellant’s position in moot court before panel of federal appellate judges),
Toronto, Ontario, August 4, 1998
FDLI Medical Device Update ‘98, “FDC Act Preemption & FDA’s Proposed
Regulation,” Washington, DC, June 24, 1998
ABA General Liability and Consumer Law Committee, “Emerging Issues in
Motor Vehicle Product Liability Litigation” (Class Actions), Phoenix, Arizona,
April 3, 1998
ABA Toxic Tort and Environmental Law Committee, “Mass Tort and
Environmental Litigation: Hot Issues in Class Actions,” Charleston, South
Carolina, March 14, 1998
Page 16 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 63 of 83
FDLI 41st Annual Educational Conference, “The Implications of FDA’s Tobacco
Regulations for FDA Regulated Industry, and Possible New Directions of the
Food, Drug, and Cosmetic Act,” Washington, DC, December 9, 1997
Trial Lawyers Association of Metropolitan Washington, “David v. Goliath:
Litigating for Plaintiffs in the ‘Tort Reform’ Era—Procedural Pitfalls in Class
Action Litigation,” Washington, DC, March 21, 1997
“Mealey’s Drug and Medical Device Litigation Conference: Preemption and the
Lohr Case,” West Palm Beach, Florida, November 22, 1996
Association of Trial Lawyers of America, “Gore and More: How to Survive
Recent Supreme Court Decisions,” Washington, DC, July 18, 1996
National Employment Law Project, Unemployment Compensation Advanced
Litigation Training: “Recovery of Attorney & Expert Witness Fees,”
Washington, DC, June 6, 1995
The Institute for Judicial Administration, New York University School of Law,
Research Conference on Class Actions and Related Issues in Complex
Litigation, New York, April 21-22, 1995
CONGRESSIONAL AND JUDICIAL TESTIMONY
Testimony on H.R. 1996, The Government Litigation Savings Act, Before the
House Judiciary Committee, Subcommittee on Courts, Commercial and
Administrative Law, October 11, 2011
Testimony on H.R. 5, the Help Efficient, Accessible, Low-cost, Timely
Healthcare (HEALTH) Act of 2011, Before the House Committee on Energy and
Commerce, Subcommittee on Health, April 6, 2011
Testimony on H.R. 1115, The Class Action Fairness Act of 2003, Before the
House Committee on the Judiciary, May 15, 2003
Testimony on Proposed Amendments to Federal Rule of Civil Procedure 23
Before the Standing Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States, Washington, DC, January 22, 2002
Testimony Before The Third Circuit Task Force on the Selection of Class
Counsel (invited by Chief Judge Edward M. Becker), Philadelphia, June 1,
2001
Testimony on H.R. 1875, The Interstate Class Action Jurisdiction Act of 1999,
Before the House Committee on the Judiciary, July 21, 1999
Testimony on H.R. 1283, The Fairness in Asbestos Compensation Act, Before
the House Committee on the Judiciary, July 9, 1999
Testimony on H.R. 2112, The Multidistrict, Multiparty, Multiforum
Jurisdiction Act of 1999, Before the House Committee on the Judiciary,
Subcommittee on Courts and Intellectual Property, June 16, 1999
Page 17 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 64 of 83
Testimony on S. 353, The Class Action Fairness Act of 1999, Before the Senate
Committee on the Judiciary, Subcommittee on Administrative Oversight and
the Courts, May 4, 1999
Testimony on H.R. 3789, The Class Action Jurisdiction Act of 1998, Before the
House Committee on the Judiciary, Subcommittee on Courts and Intellectual
Property, June 18, 1998
Testimony at oversight hearing on “Class Action Lawsuits: Examining Victim
Compensation Attorneys’ Fees,” Before the Senate Committee on the
Judiciary, Subcommittee on Administrative Oversight and the Courts, October
30, 1997
Testimony on H.R. 4558, Regarding Reform of the Equal Access to Justice Act,
Before the House Committee on the Judiciary, Subcommittee on
Administrative Law and Governmental Relations, October 5, 1994
September 2015
Page 18 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 65 of 83
EXHIBIT E
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 66 of 83
MICHAEL T. KIRKPATRICK
600 New Jersey Avenue NW, Suite 312
Washington, DC 20001-2075
202-661-6582
michael.kirkpatrick@law.georgetown.edu
EMPLOYMENT
Georgetown University Law Center, Washington, DC
Aug. 2014-present
Visiting Professor of Law
Co-Director, Institute for Public Representation
Direct full-time student clinic engaged in civil rights and general public interest litigation,
supervise and train student attorneys, teach clinic seminar and other law school courses,
including course on ethics in public interest practice.
Public Citizen Litigation Group, Washington, DC
Feb. 2004-Aug. 2014
Lawyer
Litigated public interest cases at all levels of the federal and state judiciaries, including the U.S.
Supreme Court, with an emphasis on constitutional law, civil rights, class actions, administrative
law, and open government.
Georgetown University Law Center, Washington, DC
Sept. 2007-Dec. 2013
Adjunct Professor of Law
Taught course on ethics in public interest practice and mentored students in the Public Interest
Law Scholar program.
George Washington University Law School, Washington, DC
Professorial Lecturer in Law
Taught externship seminar on public interest lawyering.
Jan. 2010-May 2010
U.S. Department of Justice, Civil Rights Division, Washington, DC
July 1995-Feb. 2004
Senior Trial Attorney, Employment Litigation Section
Litigated pattern or practice and individual employment discrimination cases against state and
local government employers on behalf of racial and ethnic minorities and women. Defended the
constitutionality of federal affirmative action procurement programs.
Texas Rural Legal Aid, Inc., Weslaco, TX
June 1991-June 1995
Staff Attorney, Farm Worker Division
Litigated employment cases on behalf of migrant, transnational, and contingent workers,
including class and collective actions. Bargained for striking workers during labor disputes.
Counseled farm worker unions and community organizations.
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 67 of 83
PUBLIC SERVICE
District of Columbia Occupational Safety and Health Board
Apr. 2014-Apr. 2015
Appointed by the Mayor and confirmed by the Council to represent the public labor sector.
AUWCL Public Interest Alumni Advisory Board
July 2013-present
Appointed by the Dean to advise the law school on increasing opportunities for students
committed to public interest law.
National Lawyers Guild
Litigation Fund Board of Directors
DC Chapter Executive Board
DC Chapter Co-Chair
National Executive Committee and Regional Vice President
2012-present
1996-2007
2002-2005
1996-1998
Jack Kent Cooke Foundation, Law and Policy Mentor
June 2008-July 2009
Guided high-achieving and under-privileged high school students in development of individual
projects related to law and policy. Taught one-week intensive course on constitutional law.
Lectured on law and policy topics and participated in interdisciplinary discussions with mentors
from other fields.
Harvard Law School, Wasserstein Public Interest Fellow
Advised students on careers in public interest law.
Sept. 2007-May 2008
American Bar Association, Government Fellow
Feb. 2000-Sept. 2002
Represented the public law perspective at meetings of the Equal Employment Opportunity
Committee, Section of Labor and Employment Law.
EDUCATION
American University Washington College of Law, Washington, DC
J.D., cum laude, May 1991
Texas Christian University, Fort Worth, TX
B.A., Political Science, May 1987
PUBLICATIONS AND TESTIMONY:
Avoiding Permanent Limbo: Qualified Immunity and The Elaboration of Constitutional Rights From
Saucier to Camreta (and Beyond), with Joshua Matz, 80 Fordham Law Review 643 (2011).
Title VI Disparate Impact Claims Would Not Harm National Security—A Response to Paul Taylor,
with Margaret Kwoka, 46 Harvard Journal on Legislation 503 (2009).
Michael T. Kirkpatrick c.v. Page 2 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 68 of 83
Statement to the Senate Homeland Security and Governmental Affairs Committee, Disaster Recovery
Subcommittee, December 16, 2008 (describing relief obtained by hurricane evacuees pursuant to the
preliminary injunction entered in ACORN v. FEMA, 463 F. Supp. 2d 26 (D.D.C. 2006)).
Employment Testing: Trends and Tactics, 10 Employee Rights and Employment Policy Journal 623
(2006).
REPRESENTATIVE CASES
U.S. Supreme Court
King v. Burwell, 2015 WL 2473448 (2015) (holding that the Affordable Care Act authorizes tax
credits for health insurance purchased from federally-established exchanges) (co-counsel for amicus
American Thoracic Society in support of respondents).
Bank of America, N.A. v. Caulkett, 135 S. Ct. 1995 (2015) (holding that a debtor in a Chapter 7
bankruptcy proceeding may not void a junior mortgage lien under § 506 of the Bankruptcy Code
even if the junior lien is wholly unsupported by any equity in the property) (co-counsel for amicus
Adam J. Levitin in support of respondents).
Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (2014) (holding that Airline Deregulation Act preempts
state common-law claims including claims based on breach of the implied covenant of good faith
and fair dealing) (co-counsel for respondent).
Jefferson County Board of Education v. Phillip C., 134 S. Ct. 64 (2013) (denying review of Eleventh
Circuit’s decision finding that a school district violated the Individuals with Disabilities Education
Act by refusing to reimburse the parents of a disabled student for the cost of an independent
educational evaluation of their child) (drafted respondent’s brief in opposition).
Limited Liability Company v. Jane Doe, 133 S. Ct. 2796 (2013) (denying review of Puerto Rico
Supreme Court’s decision applying general contract law principles to determine that the parties had
not agreed to arbitrate claims arising from an employment relationship) (drafted respondent’s brief
in opposition).
University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) (holding that
Title VII retaliation claims must be proved according to traditional principles of but-for causation)
(drafted respondent’s brief in opposition and merits brief).
RBS Citizens, N.A. v. Ross, 133 S. Ct. 1722 (2013) (granting certiorari, vacating judgment, and
remanding for further proceedings, in light of an intervening Supreme Court decision, in class action
alleging violation of state wage and hour law) (co-counsel for respondent).
Richter v. Advance Auto Parts, Inc., No. 12-854 (petition dismissed pursuant to settlement Mar. 1,
2013) (seeking review of Eighth Circuit’s decision that an employee must file a new or amended
charge alleging retaliation before filing suit under Title VII’s anti-retaliation provision even if the
Michael T. Kirkpatrick c.v. Page 3 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 69 of 83
employer’s act of retaliation is a result of the employee’s filing of an earlier charge) (co-counsel for
petitioner).
Solana Beach School District v. Ka.D., 133 S. Ct. 650 (2012) (denying review of Ninth Circuit’s
decision finding that a school district violated the Individuals with Disabilities Education Act by
denying a disabled student a free appropriate public education in the least restrictive environment)
(drafted respondent’s brief in opposition).
Compton Unified School District v. Addison, 132 S. Ct. 996 (2012) (denying review of Ninth
Circuit’s decision that a parent may invoke the due process hearing procedures of the Individuals
with Disabilities Education Act to assert a claim that a school district has violated the statute’s childfind requirement) (co-counsel for respondent).
Garden Grove Unified School District v. C.B., 132 S. Ct. 500 (2011) (denying review of Ninth
Circuit’s decision that, under the Individuals with Disabilities Education Act, a school district that
fails to provide a free appropriate public education to a disabled student can be required to reimburse
a parent for the full cost of enrolling the student in a private program that provides many, but not all,
of the special education services that the child needs) (drafted respondent’s brief in opposition).
Best Western Encina Lodge & Suites v. D’Lil, 557 U.S. 929 (2009) (denying review of Ninth
Circuit’s decision that plaintiff had standing to maintain an Americans with Disabilities Act claim
against a hotel, where plaintiff demonstrated an intent to return to the area where the hotel is located
and a desire to stay at the hotel if it were made accessible) (drafted respondent’s brief in opposition).
Flipping v. Reilly, 555 U.S. 1170 (2009) (denying review of Third Circuit’s decision that a public
employee’s truthful trial testimony is citizen speech protected by the First Amendment) (drafted
respondent’s brief in opposition).
Cerqueira v. American Airlines, Inc., 555 U.S. 821 (2008) (denying review of First Circuit’s decision
that airlines are not liable for denial-of-service decisions motivated by a passenger’s race unless there
is direct evidence of discriminatory animus by the formal decisionmaker) (drafted petition for
certiorari).
Edwards v. Kenyon, 552 U.S. 1038 (2007) (denying review of Eighth Circuit’s decision affirming,
by vote of an equally divided court, a district court order denying qualified immunity to a police
officer in case alleging excessive force) (drafted respondent’s brief in opposition).
Jones v. Flowers, 547 U.S. 220 (2006) (holding that due process requires the government to take
further action to provide notice of an impending deprivation of property when the government learns
that its initial effort has failed) (drafted petition, merits briefs, and argued).
London v. Fieldale Farms Corp., 546 U.S. 1034 (2005) (denying review of Eleventh Circuit’s
decision that Packers and Stockyards Act bars only those unfair practices that have an
anticompetitive effect) (drafted petition for certiorari).
Michael T. Kirkpatrick c.v. Page 4 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 70 of 83
Dolan v. United States Postal Service, 546 U.S. 481 (2006) (holding that the postal exception to the
Federal Tort Claims Act does not bar all claims for injuries caused by the negligence of government
employees engaged in the delivery of mail) (drafted petitioner’s merits briefs).
SSA Gulf, Inc. v. Magee, 544 U.S. 904 (2005) (denying review of Fifth Circuit’s order denying
mandamus to review district court’s remand order in case removed pursuant to claim that Longshore
and Harbor Workers’ Compensation Act completely preempts all torts arising from maritime
employment) (drafted respondent’s brief in opposition).
Gutierrez v. United Foods, Inc., 511 U.S. 1142 (1994) (denying review of Fifth Circuit’s decision
that employees lack standing under § 301 of the Labor Management Relations Act to challenge
employer’s violation of the successors and assigns clause of collective bargaining agreement)
(drafted petition for certiorari).
Federal Appellate Cases
Chiquita Brands International, Inc. v. United States Securities & Exchange Commission, No. 145030 (D.C. Cir.) (appeal of decision in reverse-Freedom of Information Act (FOIA) case involving
Chiquita’s efforts to stop the SEC from releasing documents responsive to a FOIA request for
records related to illegal payments Chiquita made to a terrorist organization in Colombia) (cocounsel for intervenor-appellee).
Price v. District of Columbia, ___ F.3d ___, 2015 WL 3916444 (D.C. Cir. 2015) (holding that
attorneys’ fees under the fee-shifting provision of the Individuals with Disabilities Education Act
must be based on prevailing market rates even if the attorney for the prevailing parties in the
underlying administrative actions was appointed under the Criminal Justice Act which caps
attorneys’ fees at a below-market rate) (lead counsel for amicus supporting appellants).
Roach v. T.L. Cannon Corp., 778 F.3d 401 (2d Cir. 2015) (vacating district court’s denial of class
certification in wage-and-hour case and holding that individualized damages determinations alone
cannot preclude class certification under Rule 23(b)(3)) (co-counsel for appellants).
Texas RioGrande Legal Aid, Inc. v. Range, 594 Fed. Appx. 813 (5th Cir. 2014) (affirming district
court’s dismissal of preemption challenge to state law that conflicts with federal regulation on
grounds that the regulation does not create a right enforceable under 42 U.S.C. § 1983 or the
Supremacy Clause) (argued for appellants).
Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (reversing district court’s decision dismissing for
lack of standing Administrative Procedure Act challenge to the Department of Labor’s “special
procedures” for employers seeking to use the H-2A program to hire temporary foreign workers for
herder jobs, and holding that the challenged procedures were substantive legislative rules subject to
notice-and-comment procedural requirements) (co-counsel for appellants).
Day v. Persels & Associates, LLC, 729 F.3d 1309 (11th Cir. 2013) (reversing district court’s
approval of class action settlement that provided no monetary relief to absent class members) (lead
counsel for appellant).
Michael T. Kirkpatrick c.v. Page 5 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 71 of 83
Tellado v. IndyMac Mortgage Services, 707 F.3d 275 (3rd Cir. 2013) (reversing decision cancelling
mortgage loan under Pennsylvania Unfair Trade Practices and Consumer Protection Law on ground
that mortgagors received all documents related to refinancing transaction in English while all prior
oral discussions had been conducted in Spanish, because Financial Institutions Reform, Recovery,
and Enforcement Act precluded district court’s subject-matter jurisdiction due to mortgagors’ failure
to exhaust administrative remedies) (co-counsel for appellees).
In Re: Katrina Canal Breaches Consolidated Litigation, 628 F.3d 185 (5th Cir. 2010) (reversing
district court’s certification of a limited fund mandatory class and approval of a settlement in a mass
tort case because the settlement lacked procedures to ensure that class claimants would be treated
equitably amongst themselves, and because the settling parties failed to show that the class members
would receive some benefit in exchange for the release of their claims) (lead counsel for appellants).
Cerqueira v. American Airlines, Inc., 520 F.3d 1 (1st Cir. 2008) (reversing verdict for plaintiff in
civil rights case challenging racial profiling by an airline and holding that airlines are not liable for
denial-of-service decisions motivated by a passenger’s race unless there is direct evidence of
discriminatory animus by the formal decisionmaker), reh’g and reh’g en banc denied, 520 F.3d 20
(Torruella, J., and Lipez, J., dissenting from denial of reh’g en banc) (lead counsel for appellee).
Sharkey v. Food and Drug Administration, 250 Fed. Appx. 284 (11th Cir. 2007) (affirming district
court decision in Freedom of Information Act case seeking records related to vaccine safety) (lead
counsel for appellant).
Luessenhop v. Clinton County, New York, 466 F.3d 259 (2d Cir. 2006) (reversing district courts’
dismissals for lack of subject matter jurisdiction and holding that Tax Injunction Act does not bar
federal court challenges to the adequacy of tax foreclosure notices) (lead counsel for amicus
supporting appellants).
Edmonds v. Department of Justice, 161 Fed. Appx. 6 (D.C. Cir. May 6, 2005) (affirming dismissal
of whistleblower suit pursuant to state secrets privilege) (lead counsel for 14 public interest and 9/11
family groups as amici urging reinstatement of suit).
Citizens Awareness Network, Inc. v. United States, 391 F.3d 338 (1st Cir. 2004) (denying petition
for review of Nuclear Regulatory Commission rule for reactor licensing proceedings) (lead counsel
for petitioners).
Gutierrez v. United Foods, Inc., 11 F.3d 556 (5th Cir. 1994) (affirming district court’s dismissal of
action brought by 25 freezing plant workers under § 301 of the Labor Management Relations Act
to challenge their former employer’s breach of the successors and assigns clause of a collective
bargaining agreement and holding that employees lack standing under § 301 to pursue such claims)
(lead counsel for appellants).
Michael T. Kirkpatrick c.v. Page 6 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 72 of 83
State Supreme Court and Appellate Cases
Jenzabar, Inc. v. Long Bow Group, Inc., 977 N.E.2d 75 (Mass. App. Ct. 2012) (affirming summary
judgment for defendant documentary film-maker on trademark claims challenging use of plaintiff
company’s name in the meta tags of pages of a film-related web site) (co-counsel for appellees).
Sidun v. Wayne County Treasurer, 751 N.W.2d 453 (Mich. 2008) (reversing decision of Court of
Appeals and holding that methods employed by county treasurer to notify plaintiff of tax foreclosure
proceedings did not satisfy due process) (co-counsel for appellant).
Jones v. Flowers, 283 S.W.3d 551 (Ark. 2008) (reversing Circuit Court’s denial of attorney’s fees
and holding that taxpayer who brought successful due process challenge to tax foreclosure sale was
entitled to fees under 42 U.S.C. § 1988) (co-counsel for appellant).
Griffin v. Bierman, 941 A.2d 475 (Md. 2008) (affirming Circuit Court and holding that notice of
foreclosure complied with procedural due process) (co-counsel for appellant).
Higginbotham v. Bozeman, 1 So.3d 179 (Table) (Fla. App. 1 Dist. 2008) (affirming Circuit Court’s
decision in due process challenge to tax foreclosure) (lead counsel for amicus supporting appellant).
State System of Higher Education v. Association of Pennsylvania State College and University
Faculties, No. 98-1079 (Pa. Commw. Ct. June 19, 1998) (petition for review of an arbitrator’s award
reinstating an employee terminated for sexual harassment) (drafted amicus brief for United States).
Federal District Court and State Trial Court Cases
Tushnet v. United States Immigration and Customs Enforcement, No. 15-0907 (D.D.C. June 12,
2015) (FOIA case seeking records related to government policies regarding seizure of counterfeit
goods) (lead counsel for plaintiff).
Pineda v. Neighbors’ Consejo, Inc., No. 14-7196 (Super. Ct. D.C. June 3, 2015) (judgment in favor
of plaintiff in action for unpaid wages, breach of contract, and promissory estoppel) (lead counsel
for plaintiff).
Adex Medical Staffing, LLC v. Gu, No. 14-7055 (Super. Ct. D.C. May 18, 2015) (breach of contract
action by employer against former employee, and counterclaims by former employee under civil
rights and wage payment statutes, dismissed pursuant to settlement agreement) (lead counsel for
defendant/counter-claimant).
Mbow v. BUEI, LLC, No. 14-1683 (D.D.C. April 27, 2015) (overtime and retaliation case under the
Fair Labor Standards Act, dismissed pursuant to settlement) (lead counsel for plaintiff).
New Orleans Workers’ Center for Racial Justice v. United States Immigration and Customs
Enforcement, No. 15-0431 (D.D.C. Mar. 25, 2015) (FOIA case seeking records related to community
immigration enforcement programs) (co-counsel for plaintiffs).
Michael T. Kirkpatrick c.v. Page 7 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 73 of 83
Wolfman v. United States Dept. of Justice, Executive Office for United States Attorneys, No. 14-1820
(D.D.C. Jan. 16, 2015) (FOIA case seeking records related to motions for summary affirmance filed
by the U.S. Attorney’s Office for the District of Columbia, dismissed pursuant to settlement) (cocounsel for plaintiff).
American Immigration Lawyers Association v. Executive Office for Immigration Review, ___ F.
Supp. 3d ___, 2014 WL 7356566 (D.D.C. Dec. 24, 2014) (granting partial summary judgment for
plaintiff in FOIA case seeking records related to complaints against immigration judges) (co-counsel
for plaintiff).
Crockett v. Hybano, No. 14-7109 (Super. Ct. D.C. Nov. 7, 2014) (action for unpaid wages) (cocounsel for plaintiff).
Public Citizen v. Food and Drug Administration, No. 14-751 (D.D.C. Nov. 7, 2014) (APA challenge
to agency inaction on petition to revise warnings on proton pump inhibitor label, dismissed as moot
following decision on petition) (co-counsel for plaintiff).
McCrae v. District of Columbia, No. 13-4758 (Super. Ct. D.C. Sept. 9, 2014) (granting summary
judgment for plaintiffs in breach of contract action to enforce attorney fee provision of settlement
agreements in cases where attorney was appointed under the Criminal Justice Act to represent
indigent students in actions under the Individuals with Disabilities Education Act) (co-counsel for
plaintiff).
Douglas v. District of Columbia, ___ F. Supp. 3d ___, 2014 WL 4359192 (D.D.C. Sept. 4, 2014)
(granting petition for award of market-rate attorneys fees under the fee-shifting provision of the
Individuals with Disabilities Education Act and rejecting argument that counsel’s hourly rate is
capped by the terms of the statute under which counsel was appointed) (co-counsel for plaintiff).
Hall v. District of Columbia, No. 13-8368 (Super. Ct. D.C. Aug. 11, 2014) (granting summary
judgment for plaintiff in breach of contract action to enforce attorney fee provision of settlement
agreements in cases where attorney was appointed under the Criminal Justice Act to represent
indigent students in actions under the Individuals with Disabilities Education Act) (co-counsel for
plaintiff).
Price v. District of Columbia, 61 F. Supp. 3d 135 (D.D.C. 2014) (denying petition for award of
market-based attorney fees under the fee-shifting provision of the Individuals with Disabilities
Education Act where the attorney for the prevailing parties in the underlying administrative actions
was appointed under the Criminal Justice Act) (co-counsel for plaintiff).
Royer v. Federal Bureau of Prisons, Nos. 10-1196 and 10-1996 (D.D.C. July 15, 2014) (claims
under the Privacy Act, Due Process Clause, and Administrative Procedure Act on behalf of federal
prisoner classified as a terrorist inmate and subjected to harsh conditions of confinement based on
false information, dismissed pursuant to settlement agreement providing plaintiff full relief) (lead
counsel for plaintiff).
Michael T. Kirkpatrick c.v. Page 8 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 74 of 83
Houser v. Pritzker, 28 F. Supp. 3d 222 (S.D.N.Y. 2014) (granting class certification in Title VII
class action challenging Census Bureau’s use of arrest records to screen applicants for temporary
jobs for the decennial census); 851 F. Supp. 2d 688 (S.D.N.Y. 2012) (denying motion to dismiss)
(co-counsel for plaintiff class).
Day v. Persels & Associates, LLC, No. 10-2463 (M.D. Fla. Feb. 14, 2014) (denying approval of class
action settlement) (lead counsel for objector).
Easterling v. Connecticut Department of Correction, No. 08-826 (D. Conn. Sept. 12, 2013)
(judgment for plaintiff class pursuant to final approval of settlement providing over $3 million and
28 priority-hire positions to class of 124 women rejected from consideration for entry-level
Correction Officer jobs based on employer’s use of discriminatory test); 278 F.R.D. 41 (D. Conn.
2011) (modifying class certification order in light of Wal-Mart Stores, Inc. v. Dukes); 783 F. Supp.
2d 323 (D. Conn. 2011) (granting summary judgment for plaintiffs on the issue of liability in Title
VII action challenging use of physical fitness test that had disparate impact on women applicants);
265 F.R.D. 45 (D. Conn. 2010) (certifying class) (co-counsel for plaintiff class).
Mendoza v. Solis, 924 F. Supp. 2d 307 (D.D.C. 2013) (dismissing for lack of standing
Administrative Procedure Act challenge to the Department of Labor’s “special procedures” for
employers seeking to use the H-2A program to hire temporary foreign workers for herder jobs) (lead
counsel for plaintiffs).
Public Citizen v. Food and Drug Administration, No. 12-1461 (D.D.C. Nov. 27, 2012) (APA
challenge to agency inaction on petition to withdraw marketing approval of Aricept 23, dismissed
as moot following decision on petition) (lead counsel for plaintiff).
Cason v. Central Intelligence Agency, No. 11-01 (S.D.N.Y. Mar. 29, 2012) (summary judgment for
defendant in FOIA case challenging CIA’s use of Glomar response) (co-counsel for plaintiff).
Aziz v. AirTran Airways, Inc., No. 10-1995 (D.D.C. Jan. 17, 2012) (civil rights case challenging
airline’s denial of service to nine Muslim passengers, dismissed pursuant to confidential settlement
agreement) (co-counsel for plaintiffs).
In re Petition of Kutler, 800 F. Supp. 2d 42 (D.D.C. 2011) (granting petition to unseal the transcript
of President Nixon’s grand jury testimony and certain associated materials of the Watergate Special
Prosecution Force) (co-counsel for petitioner).
Wilson v. DirectBuy, Inc., 2011 WL 2050537 (D. Conn. May 16, 2011) (denying final approval of
proposed class action settlement) (lead counsel for objector).
Jenzabar, Inc. v. Long Bow Group, Inc., 2010 WL 7877089 (Mass. Super. Ct. Dec. 7, 2010)
(granting summary judgment to defendant documentary film-maker on trademark claims challenging
use of plaintiff company’s name in the meta tags of pages of a film-related web site) (co-counsel for
defendants).
Michael T. Kirkpatrick c.v. Page 9 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 75 of 83
True v. American Honda Motor Co., Inc., 2010 WL 707338 (C.D. Cal. Feb. 26, 2010) (denying final
approval of proposed class action settlement) (lead counsel for objectors).
In re Katrina Canal Breaches Consolidated Litigation, 263 F.R.D. 340 (E.D. La. 2009) (certifying
limited fund class and approving settlement in mass tort case against levee districts for damages
resulting from levee failures following Hurricane Katrina) (lead counsel for objectors).
Public Citizen v. Food and Drug Administration, No. 08-1051 (D.D.C. July 14, 2009) (APA
challenge to agency inaction on petition to withdraw marketing approval of propoxyphene, dismissed
as moot following decision on petition) (lead counsel for plaintiff).
Rivera-Drew v. Department of Health and Human Services, No. 09-296 (D.D.C. Aug. 30, 2010)
(FOIA case seeking documents filed by hospital system pursuant to a Corporate Integrity Agreement,
dismissed pursuant to settlement) (lead counsel for plaintiff).
United Farm Workers v. Department of Labor, No. 07-2241 (D.D.C. Sept. 11, 2008) (FOIA case
seeking documents related to guestworker program and challenging denial of fee waiver, dismissed
pursuant to settlement) (lead counsel for plaintiffs).
Northwest Austin Municipal Utility District Number One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C.
2008) (upholding constitutionality of Section 5 of the Voting Rights Act), rev’d on other grounds,
Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009) (co-counsel
for defendant-intervenors).
Public Citizen v. Food and Drug Administration, No. 08-0005 (D.D.C. July 25, 2008) (APA
challenge to agency inaction on petition to enhance warnings regarding risk of tendon injury
associated with use of fluoroquinolones, dismissed as moot following decision on petition) (lead
counsel for plaintiff).
ACLU of Delaware v. Danberg, 2007 WL 901592 (Del. Super. Ct. Mar. 15, 2007) (Delaware FOIA
case seeking records related to medical care in Delaware prisons, dismissed pursuant to settlement)
(lead counsel for plaintiff).
Cerqueira v. American Airlines, Inc., 484 F. Supp. 2d 232 (D. Mass. 2007) (jury verdict for plaintiff
following eight-day trial in civil rights case challenging racial profiling by an airline) (lead counsel
for plaintiff).
ACORN v. FEMA, 463 F. Supp. 2d 26 (D.D.C. 2006) (granting preliminary injunction in favor of
association of hurricane evacuees in due process challenge to the adequacy of notices of ineligibility
for housing assistance benefits) (lead counsel for plaintiffs).
Howell v. United States Department of Justice, 2006 WL 890674 (D.D.C. Apr. 4, 2006) (granting
summary judgment for defendant in FOIA case challenging prison’s refusal to permit prisoner to
possess a copy of his presentence report) (lead counsel for plaintiff).
Michael T. Kirkpatrick c.v. Page 10 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 76 of 83
Sharkey v. Food and Drug Administration, 2006 WL 508044 (M.D. Fla. Mar. 1, 2006) (granting
summary judgment for defendants in FOIA case seeking records related to vaccine safety) (lead
counsel for plaintiff).
Asociacion de Trabajadores Fronterizos v. Department of Labor, No. 04-400 (W.D. Tex. Dec. 30,
2005) (APA challenge to trade adjustment assistance program for dislocated workers who are limited
English proficient, dismissed pursuant to settlement) (co-counsel for plaintiffs).
Public Citizen v. Food Safety and Inspection Service, No. 04-1749 (D.D.C. Nov. 13, 2005) (FOIA
case seeking records related to agency’s evaluation of equivalence of foreign meat and poultry
regulatory systems, dismissed as moot following production of the records) (co-counsel for plaintiff).
Project On Government Oversight v. Ashcroft, 04-01032 (D.D.C. Mar. 9, 2005) (First Amendment
challenge to the retroactive classification of information concerning a whistleblower’s allegations
of misconduct in an FBI translation unit, dismissed as moot) (lead counsel for plaintiff).
Public Citizen v. Office of Management and Budget, No. 04-1031 (D.D.C. Feb. 4, 2005) (FOIA case
seeking fee waiver and records related to fuel economy standards, dismissed as moot following
production of the records) (lead counsel for plaintiff).
Public Citizen v. Food and Drug Administration, No. 04-0411 (D.D.C. June 18, 2004) (APA
challenge to agency inaction on petition to withdraw marketing approval of nefazadone, dismissed
as moot following withdrawal by manufacturer) (lead counsel for plaintiff).
United States v. City of Garland, Texas, 2004 WL 741295 (N.D. Tex. Mar. 31, 2004) (verdict for
defendant following ten-day bench trial in Title VII disparate impact case challenging discriminatory
use of written cognitive tests to select police officers and firefighters); 124 F. Supp. 2d 442 (N.D.
Tex. 2000) (holding that order requiring mayor and two city council members to attend mediation
session did not violate Texas Open Meetings Act) (lead counsel for plaintiff).
United States v. Delaware, 2004 WL 609331 (D. Del. Mar. 22, 2004) (verdict for plaintiff following
six-day bench trial in Title VII disparate impact case challenging discriminatory use of a written
cognitive test to select state troopers); 2003 WL 21183641 (D. Del. May 20, 2003) (granting partial
summary judgment for plaintiff) (lead counsel for plaintiff).
United States v. City of Belleville, Illinois, No. 93-799 (S.D. Ill. Jan. 27, 2003) (contested relief
proceedings to enforce consent decree in Title VII action alleging a pattern or practice of
discrimination in hiring on the basis of race and sex) (co-counsel for plaintiff).
United States v. City of Canton, Missisippi, No. 96-0760 (S.D. Miss. Nov. 20, 1997) (jury verdict
for defendant following four-day trial in case alleging sex discrimination in promotion) (lead counsel
for plaintiff).
Safeco Insurance Company of America v. City of Whitehouse, Tennessee, No. 87-0883 (M.D. Tenn.
Aug. 5, 1997) (judgment, following a four day combined bench and jury trial, that application of
Michael T. Kirkpatrick c.v. Page 11 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 77 of 83
federal affirmative action procurement guideline did not violate the Constitution) (co-counsel for
intervenor U.S. Environmental Protection Agency).
United States v. City of Forney, Texas, No. 96-03146 (N.D. Tex. Mar. 24, 1997) (consent decree
resolving Title VII action alleging discrimination on account of race) (lead counsel for plaintiff).
United States v. California University of Pennsylvania, No. 96-724 (W.D. Pa. Oct. 23, 1996)
(consent decree resolving multiple claims of hostile work environment sexual harassment and
retaliation) (lead counsel for plaintiff).
United States v. Borough of Glassboro, New Jersey, No. 95-01911 (D.N.J. June 19, 1996) (consent
decree resolving Title VII action alleging discrimination on account of sex) (lead counsel for
plaintiff).
United States v. City of El Monte, California, No. 91-6151 (C.D. Cal. May 27, 1992) (enforcement
of consent decree in Title VII action alleging a pattern or practice of discrimination in hiring on the
basis of race and national origin) (co-counsel for plaintiff).
Olguin v. Angelica Nurseries, Inc., No. 95-006 (S.D. Tex. Sept. 6, 1995) (breach of contract and
Agricultural Worker Protection Act case by ten migrant farm workers against a Maryland nursery,
dismissed pursuant to settlement) (lead counsel for plaintiffs).
Campos v. United Foods, Inc., No. 93-233 (S.D. Tex. Apr. 17, 1995) (breach of contract and
Agricultural Worker Protection Act case by four migrant workers against a Tennessee frozen
vegetable company, dismissed pursuant to settlement) (lead counsel for plaintiffs).
Zapata v. Grasmick, No. 94-113 (S.D. Tex. Jan. 4, 1995) (action by five migrant farm workers
against a Colorado onion grower under the Agricultural Worker Protection Act, and Fair Labor
Standards Act, dismissed pursuant to settlement) (lead counsel for plaintiffs).
Adame v. Holmes, No. 93-206 (S.D. Tex. Dec. 23, 1994) (breach of contract and Agricultural
Worker Protection Act case by 34 migrant workers against a South Carolina peach grower, dismissed
pursuant to settlement) (lead counsel for plaintiffs).
Avendano v. Ousley, No. 94-112 (S.D. Tex. Dec. 20, 1994) (action by six migrant farm workers
against an Indiana grower under the Agricultural Worker Protection Act, Fair Labor Standards Act,
and for breach of contract, dismissed pursuant to settlement) (lead counsel for plaintiffs).
Ousley v. Avendano, No. 94-157 (S.D. Tex. Sept. 16, 1994) (declaratory judgment action filed by
grower in Indiana state court against migrant farm workers who sent demand letter, case removed
to federal court, transferred to Texas, and dismissed) (lead counsel for defendants).
Moreno v. McDonald, No. 94-2610 (Tex., 332nd Dist. Ct. Aug. 30, 1994) (breach of contract action
by three migrant workers against a Michigan pickle farmer) (lead counsel for plaintiffs).
Michael T. Kirkpatrick c.v. Page 12 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 78 of 83
Balderas v. Holmes, No. 94-024 (W.D. Tex. June 5, 1994) (action by 29 migrant farm workers
against a South Carolina peach grower under the Agricultural Worker Protection Act, Fair Labor
Standards Act, and for breach of contract, dismissed pursuant to settlement) (lead counsel for
plaintiffs).
Escutia v. Bloomfield Big Burley Tobacco Warehouse, No. 93-180 (S.D. Tex. May 4, 1994) (action
by five migrant farm workers against Kentucky tobacco farms and warehouses under the Agricultural
Worker Protection Act, and Fair Labor Standards Act, dismissed pursuant to settlement) (lead
counsel for plaintiffs).
Sosa v. Wailuku Agribusiness Co., No. 92-129 (S.D. Tex. Feb. 17, 1994) (action by 27 migrant farm
workers against a Hawaii pineapple company under the Agricultural Worker Protection Act, Fair
Labor Standards Act, Title VII, and common law, dismissed pursuant to settlement on the day of trial
following grant of partial summary judgment for plaintiffs) (lead counsel for plaintiffs).
Vilches v. Pace Foods, Inc., No. 93-151 (S.D. Tex. Sept. 20, 1993) (class action under Agricultural
Worker Protection Act, and collective action under Fair Labor Standards Act, brought by seven
jalapeno harvesters against a food processor, settled for individual damages and class-wide consent
agreement) (lead counsel for plaintiffs).
Gaona v. Barker, No. 93-1573 (Tex., 370th Dist. Ct. Sept. 20, 1993) (judgment for three migrant
workers in breach of contract action against a Mississippi combine operator) (lead counsel for
plaintiffs).
Former Employees of Sundor v. Department of Labor, No. 92-177 (Ct. Int’l Trade Apr. 7, 1993)
(judicial review of administrative decision denying eligibility for trade adjustment assistance to 105
former employees of a juice plant, remanded to the agency for further investigation) (lead counsel
for plaintiffs).
Regino v. Falak, No. 92-176 (S.D. Tex. Jan. 6, 1993) (action by eight migrant farm workers against
a Michigan fruit grower under the Agricultural Worker Protection Act, dismissed pursuant to
settlement) (lead counsel for plaintiffs).
Sanchez v. Salazar’s Farms, Inc., No. 92-217 (S.D. Tex. Dec. 22, 1992) (action brought by striking
jalapeno pickers under Agricultural Worker Protection Act, and Fair Labor Standards Act, dismissed
as part of strike settlement) (lead counsel for plaintiffs).
Quintanilla v. Pioneer Hi-Bred International, Inc., No. 92-051 (S.D. Tex. consent agreement entered
June 17, 1992) (class action for injunctive relief under disclosure and wage statement provisions of
the Agricultural Worker Protection Act, with claims for damages by 22 individuals, settled for
individual damages and class-wide consent agreement) (lead counsel for plaintiffs).
Sanchez v. Harnish, No. 91-229 (S.D. Tex. Apr. 21, 1992) (agreed judgment for 17 migrant farm
workers in breach of contract and Agricultural Worker Protection Act case against an Indiana
grower) (lead counsel for plaintiffs).
Michael T. Kirkpatrick c.v. Page 13 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 79 of 83
STRIKE NEGOTIATIONS
Salazar’s Farms, Inc., 221 Daily Lab. Rep. A-1 (BNA Nov. 16, 1992) (strike by 80 field workers
against farm that employed them to pick and destem jalapenos, settled for wage increase of more
than fifty percent and other concessions) (lead negotiator for striking workers).
Santa Sarita, Inc., 6 Daily Lab. Rep. A-4 (BNA Jan. 9, 1992) (strike by 175 packing shed workers,
settled for change in pay system from piece rate to hourly rate resulting in sixty percent increase in
worker earnings and improved working conditions) (lead negotiator for striking workers).
Rio Grande Valley Sugar Growers, Inc., 229 Daily Lab. Rep. A-12 (BNA Nov. 27, 1991) (five-day
strike by 120 truck drivers and 245 field workers against a sugar mill, settled for wage increases and
other concessions valued at more $560,000 per season) (lead negotiator for striking workers).
PRESENTATIONS AT ACADEMIC AND EDUCATIONAL SEMINARS
American University Washington College of Law, “Public Interest Practice: Perspectives from the
Field,” Washington, DC, March 2015.
National Consumer Law Center, Experienced FDCPA Litigators’ Meeting, “Ethical Issues:
Individual and Class Action Retainer Agreements, Attorneys’ Fees, Incentive Awards, and
Settlements,” Washington, DC, March 2015.
Low Wage Worker Legal Network, “Using the Administrative Procedure Act to Advance Workers’
Rights,” Portland, OR, January 2015.
PILnet International Fellowship, “Clinical Legal Education in the United States,” Washington, DC,
January 2015.
George Washington University Law School, The Tension Between Academic Freedom and State
Open Records Laws, “Why the Federal FOIA Does Not Fit the Problem,” and “The Rationales for
Disclosure and Withholding,” Washington, DC, April 2014.
Cardozo School of Law, Winter Seminar on Lawyering in Washington, DC, “Public Interest
Lawyering,” Washington, DC, January 2012, January 2013, January 2014.
General Services Administration, Federal Advisory Committee Act Management Training Course,
“The Public Interest Perspective,” Washington, DC, March 2005, May 2005, August 2005, March
2006, June 2006, August 2006, March 2007, June 2007, November 2007, May 2008, August 2008,
December 2008, March 2009, June 2009, March 2010, May 2010, November 2010, March 2011,
June 2011, November 2011, March 2012, May 2012, June 2012, August 2012, November 2012,
March 2013, November 2013, June 2014.
American University Washington College of Law, “Pursuing a Career in Public Interest Law,”
Washington, DC, February 2009, October 2013.
Michael T. Kirkpatrick c.v. Page 14 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 80 of 83
National Employment Lawyers Association, Preventing Wage Theft: A Guide to Litigating Cases
Involving Wages, Hours and Work, “Ethical Considerations In Representing Workers In Wage and
Hour Actions,” Chicago, IL, March 2013.
Catholic University of America, Columbus School of Law, “Ethical Issues in Externships,”
Washington, DC, February 2008, March 2010, March 2012, March 2013.
Impact Fund, 10th Annual Class Action Conference, “Litigating Disparate Impact Testing Cases:
Opportunities After Dukes,” Berkeley, CA, March 2012.
Georgetown University Law Center, Institute for Public Representation, “Ethics in Public Interest
Law,” Washington, DC, October 2011, February 2012.
George Washington University Law School, Student Bar Association, “Public Interest Lawyering:
An Introduction,” Washington, DC, January 2012.
General Services Administration, 2011 Federal Advisory Committee Act Training Conference,
“Transparency and Public Participation in Advisory Committee Meetings,” Washington, DC,
September 2011.
Fordham Law School, Symposium on Official and Municipal Liability for Constitutional and
Intentional Torts, “The Repudiation of Saucier v. Katz and Its Consequences in The Courts,” New
York, NY, April 2011.
George Washington University Law School, National Lawyers Guild, “Progressive Lawyering
Career Panel: Successful Attorneys Discus Working in the Law Without Compromising Their
Ethics,” Washington, DC, February 2011.
U.S. Department of State, International Visitor Leadership Program, “The Role of NGOs in
Promoting Government Transparency and Accountability,” Washington, DC, September 2010.
Texas RioGrande Legal Aid, Attorney’s Fees Basics for Legal Aid Attorneys, “Ethics and Attorney’s
Fees,” “Nuts and Bolts of Seeking Court Awarded Attorney’s Fees,” and “Common Issues in
Attorney’s Fees Litigation,” San Antonio, TX, March 2010.
Georgetown University Law Center, Institute for Public Representation, “The Client Interview,”
Washington, DC, September 2009.
U.S. Department of Housing and Urban Development, Manufactured Housing Consensus
Committee, “MHCC and the Federal Advisory Committee Community,” Arlington, VA, July 2009.
University of Texas School of Law, Recovering Unpaid Wages for Low-Income Workers, “Ethical
Issues in Wage Recovery Practice,” Austin, TX, June 2009.
Jack Kent Cooke Foundation, Advanced Mentorship Program, “An Introduction to Public Interest
Law,” and “An Introduction to Constitutional Law,” Yale University, New Haven, CT, June 2008.
Michael T. Kirkpatrick c.v. Page 15 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 81 of 83
American University Washington College of Law, First Annual Public Interest Alumni Dinner,
Keynote Speech: “Public Interest Law—Where We’ve Been and Where We’re Going,” Washington,
DC, February 2008.
General Services Administration, Federal Advisory Committee Act Training Conference,
“Encouraging Public Participation in Advisory Committee Meetings,” Washington, DC, December
2007.
Georgetown University Law Center, Government Accountability Seminar, “Holding the Government
Accountable for Failures in Disaster Preparedness and Response,” Washington, DC, October 2007.
Georgetown University Law Center, National Lawyers Guild, Law Student Disorientation, “Radical
Lawyering in a Corporate Law Environment,” Washington, DC, September 2007.
The Texas Lyceum, 22nd Public Conference: Separation of Church and State, “Public Interest
Litigation,” Austin, TX, July 2007.
National Lawyers Guild, Mid-Atlantic Regional Convention, “Strategies for Pursuing Social Justice
in an Era of Economic Globalization,” Washington, DC, March 2006.
Harvard Law School, Office of Public Interest Advising, “A Career in Public Interest Law,”
Cambridge, MA, January 2006.
National Employment Lawyers Association, Impact Litigation: Representing Workers in Class,
Collective, and Multiple Plaintiff Actions, “Employment Testing: Trends and Tactics,” Cambridge,
MA, October 2005.
Society for Industrial and Organizational Psychology, Annual Conference, “Cut Scores in
Employment Discrimination Cases: Where We Are Today,” Los Angeles, CA, April 2005.
Society for Industrial and Organizational Psychology, Annual Conference, “Retrospective Research
in Complex Organizations for Legal Defensibility,” Los Angeles, CA, April 2005.
NAACP Legal Defense and Educational Fund, Civil Rights Training Institute, “Practical Issues in
Litigating Entry Into the Workforce: Challenging Artificial Barriers Using the Disparate Impact
Theory,” Warrenton, VA, October 2004.
Department of Justice, Civil Rights Division, “Lessons Learned: Litigation Strategies for Complex
Disparate Impact Cases,” Washington, DC, January 2004.
Department of Justice, Civil Rights Division, New Lawyer Training, “Trial Strategies for Title VII
Cases,” Washington, DC, March 2003.
American Immigration Lawyers Association, DC Chapter, “Employment Law for Immigration
Lawyers: The Employment Rights of Undocumented Workers After Hoffman Plastic Compounds,
Inc. v. NLRB,” Washington, DC, September 2002.
Michael T. Kirkpatrick c.v. Page 16 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 82 of 83
Department of Justice, Civil Rights Division, New Lawyer Training, “Discovery Techniques for
Title VII Cases,” Washington, DC, March 2001.
American University Washington College of Law, Office of Career Services, “Opportunities in
Public Interest Law,” Washington, DC, November 1999.
American University Washington College of Law, Admitted Applicants Day, “Preparing for a Career
in Public Interest Law,” Washington, DC, April 1999.
Department of Justice, Civil Rights Division, New Lawyer Training, “Investigating the Employment
Practices of State and Local Governments,” Washington, DC, March 1999.
National Lawyers Guild, National Convention, “The Globalization of Labor,” Detroit, MI, October
1998.
U.S. Information Agency, International Visitor Program, “Civil Rights Litigation in the United
States,” Washington, DC, June 1998.
American University Washington College of Law, Law and Government Society, “Working for
Federal Government Agencies,” Washington, DC, January 1998.
American University Washington College of Law, Pro Bono Day, “Alumni Experiences in Public
Interest Law,” Washington, DC, April 1996.
Midwest Migrant Health Project, “An Introduction to Farm Worker Rights Under the Agricultural
Worker Protection Act and the Fair Labor Standards Act,” Mercedes, TX, March 1995.
Agricultural Employers Mediation Conference, “Special Issues in Agricultural Employment,” South
Padre Island, TX, February 1995.
National Association for Public Interest Law, National Conference, “Representing Rural
Communities,” Washington, DC, October 1994.
Texas Rural Legal Aid, Migrant Advocates Annual Meeting, “Long Arm Jurisdiction After Aviles
v. Kunkle,” South Padre Island, TX, June 1994.
National Migrant Legal Services Conference, “Taking the Employer’s Deposition,” Ft. Worth, TX,
March, 1994.
National Lawyers Guild, Tex-Oma Regional Conference, “Post-NAFTA Agenda: A look at the
Proposed Labor Side Agreement,” San Antonio, TX, January 1994.
Eastern Stream Migrant Advocates Meeting, “Discovery Issues in Joint Employment Cases,”
Charleston, SC, November 1993.
Michael T. Kirkpatrick c.v. Page 17 of 18
Case 1:16-cv-00745-ESH Document 8-1 Filed 05/02/16 Page 83 of 83
National Association for Public Interest Law, National Conference, “Fulfilling the Need: Working
in Rural Areas,” Washington, DC, October 1993.
National Lawyers Guild, Tex-Oma Regional Conference, “Protecting Farm Worker Rights,” Austin,
TX, February, 1992.
Houston Refugee Pro Bono Project, Representation in Deportation and Asylum Proceedings,
“Political Asylum In Canada,” Houston, TX, February 1988, July 1988.
AWARDS
Peter M. Cicchino Award for Outstanding Advocacy in the Public Interest
U.S. Department of Justice Special Achievement Award
2008
Annually 1996-2002
AUWCL Dean’s Award for Professional Responsibility, Outstanding Clinical Student
1991
BAR MEMBERSHIPS
U.S. Supreme Court; U.S. Court of Appeals for the D.C., First, Fifth, and Eleventh Circuits; U.S.
District Court for the District of Columbia; District of Columbia ; Texas (inactive)
Michael T. Kirkpatrick c.v. Page 18 of 18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?