Hernández v. Mesa
Filed amicus brief on behalf of former police chiefs supporting petitioners in pending case involving the extraterritorial application of the Constitution and issues of qualified immunity. (Ongoing)
Peña-Rodriguez v. Colorado
Drafted an amicus brief on behalf of the Hispanic National Bar Association, LatinoJustice PRLDEF, and the Anti-Defamation League arguing that evidentiary rules that prohibit defendants from introducing direct evidence of a jury’s racially motivated decision-making must be subjected to strict scrutiny. (U.S. 2016)
Evenwel v. Abbott
Filed amicus brief on behalf of bar associations, urging the Supreme Court to reject the appellant’s argument that persons ineligible to vote should not be “counted” for purposes of legislative districting. The New York Times reported that the Court’s decision—which rejected that argument—was “a major statement on the meaning of a fundamental principle of the American political system, that of ‘one person one vote.’” 136 S. Ct. 1120 (2016)
T-Mobile v. City of Roswell, Georgia
Successfully sought cert. and obtained reversal of 11th Circuit decision in litigation challenging municipality’s denial of a wireless provider’s application to install a wireless facility. S Ct., 2015 WL 159278 (Jan. 14, 2015)
Lanell Williams-Yulee v. The Florida Bar
Filed amicus brief on behalf of the American Civil Liberties Union in a First Amendment litigation challenging state restrictions on solicitation of campaign contributions by judicial candidates. 135 S. Ct. 1656 (2015)
City of Arlington, Texas v. FCC*
Successfully defended FCC order designed to promote the deployment of wireless Internet services by requiring local zoning authorities to timely act on wireless carriers’ applications to construct and modify cell phone towers and wireless facilities. Writing for Bloomberg, Professor Cass Sunstein has described the case as "an important victory" for the Government "that will long define the relationship between federal agencies and federal courts." 113 S. Ct. 1863 (2013)
FCC v. Fox Television Stations*
Defended against broad First Amendment and due process challenges to FCC rulings applying the agency’s broadcast indecency policy. The Supreme Court vacated a 2nd Circuit ruling striking down the agency’s policy as facially unconstitutional, instead setting aside the FCC specific rulings on a narrower ground based on the particular facts. 132 S. Ct. 2307 (2012)
FCC v. AT&T*
Successfully defended an FCC order in a Freedom of Information Act case. Reversing an adverse court of appeals decision, the Supreme Court agreed with the FCC that corporations may not assert “personal privacy” interests under an exemption from the Act’s disclosure requirement. 131 S. Ct. 1177 (2011)
Talk America v. Michigan Bell Tel. Co.*
Successfully urged the Supreme Court to defer to the FCC’s understanding of an agency rule regarding the prices that incumbent telephone companies can charge competitors for certain transmission facilities. Reversing an adverse court of appeals decision, the Supreme Court laid out a key principle requiring courts to defer to agency interpretations of their own regulations, even when set forth in amicus briefs. 131 S. Ct. 2254 (2011)
Tribune Co., et al. v. FCC*
Successfully resisted petitions for certiorari filed by media companies seeking review of a 3rd Circuit decision that rejected First Amendment and statutory challenges to the FCC’s most recent media ownership rules. 133 S. Ct. 64 (2012); 133 S. Ct. 73 (2012); 545 U.S. 1123 (2012)
Dish Network Corp. v. FCC*
Successfully resisted petition for certiorari seeking review of a 9th Circuit decision upholding, against a First Amendment challenge, a federal statute requiring carriage of certain television stations in High Definition format. 132 S. Ct. 1162 (2012)
CBOCS West, Inc. v. Humphries*
Filed amicus brief on behalf of 14 states in support of respondent in employment-law dispute regarding whether retaliation claims are cognizable under 42 U.S.C. § 1981. Court affirmed. 553 U.S. 442 (2008)
Cahill v. Alexander*
Cert. petition on behalf of the chief counsel for the Departmental Disciplinary Committee of the New York Supreme Court Appellate Division, First Department, in First Amendment challenge to attorney advertising rules. 131 S. Ct. 820 (2010)
New Technology, Cybersecurity, and Privacy Matters
Ameren Corp. v. FCC
Representing the National Cable & Telecommunications Association as intervenor in support of an FCC order that limits the rents communications providers must pay to electric utilities in order to use their facilities to provide broadband service. Argued before the 8th Circuit and awaiting decision. (Ongoing)
Neustar v. FCC
Representing telecommunications trade associations CTIA and USTelecom as intervenors in D.C. Circuit appeal from FCC order selecting new vendor to provide database administration services that are currently provided by Neustar under a contract worth more than $400 million per year. (Ongoing)
FCC cybersecurity enforcement action
Represented telecommunications providers in the first ever FCC enforcement proceeding involving cybersecurity. Case arose out of an alleged data breach involving disclosure of proprietary customer information online. As Bloomberg BNA reported, the case not only marked the FCC’s “ent[ry] [into] the data security enforcement filed,” it was also (at the time) “the largest privacy action in the FCC’s history.” In 2015, the case settled on favorable terms for a fraction of the fine proposed by the FCC. (2015)
Matter of a warrant to search a certain email account controlled and maintained by Microsoft Corporation
Represented Amazon and Accenture as amici curiae before the Second Circuit in a closely-watched case involving whether the government may issue search warrants under the federal Stored Communications Act (SCA) to require providers of cloud computing services to turn over emails and other electronic documents stored in datacenters overseas—here, emails stored by Microsoft on a server in Dublin, Ireland. Consistent with the position of our amicus brief, the Second Circuit held that SCA search warrants cannot be applied outside the United States. The New York Times described this as a “surprise victory” in a case with significant “privacy implications for the growing cloud computing business, with implications for internet email and online storage, among other services.” 829 F.3d 197 (2d Cir. 2016), pet. for rehearing en banc pending (Ongoing)
FTC v. T-Mobile
Represented T-Mobile in the first ever litigation brought by the Federal Trade Commission against a telecommunications carrier under Section 5 of the FTC Act. The FTC alleged that the carrier engaged in deceptive and unfair practices by charging customers for unauthorized premium text message (SMS) services provided by third parties. As PC Magazine reported, this was “the second-largest mobile cramming settlement ever handed down.” Angela Moscaritolo, ‘T-Mobile Settles Phone-Cramming Case for $90 Million,’ PCMag, Dec. 19, 2014. It is also one of a handful of settlements ever negotiated that involved the FTC, the FCC, and the Attorneys General from all 50 States and the District of Columbia.
New Cingular Wireless PCS, et al. v. Picker, et al.
Represented Comcast in a successful joint effort by a coalition of telecommunications providers to block a ruling by an Administrative Law Judge of the California Public Utilities Commission, ordering the providers to share their highly sensitive business data with third parties. The U.S. District Court for the Northern District of California granted plaintiffs a preliminary injunction, preventing disclosure of the data, and the Commission subsequently terminated its proceeding.
Comcast of Oregon v. City of Eugene
Briefed and argued before the Supreme Court of Oregon a case of first impression under the Internet Tax Freedom Act. 359 Or. 528 (2016).
Twitter v. Holder
Representing The Washington Post, The Guardian, NPR, BuzzFeed, and other media organizations as amici curiae in lawsuit challenging government restrictions on information that tech companies may publish in transparency reports that disclose the aggregate numbers of surveillance requests they have received from the government for information about their customers. (Ongoing)
Cellco Partnership v. FCC*
and argued before the D.C. Circuit an appeal challenging the FCC’s "data roaming" rule, which enables users of smartphones and other mobile devices to obtain nationwide mobile Internet access. 700 F.3d 534 (D.C. Cir. 2012)
Verizon v. FCC*
Responsible for litigation strategy, including overseeing briefing and extensive coordination with amici and a coalition of technology company intervenors (including Amazon, eBay, Facebook, Google, Netflix, and Skype), in litigation before the D.C. Circuit challenging the FCC’s 2010 order adopting “Open Internet” or “net neutrality” rules. While vacating two of the three rules, the D.C. Circuit upheld the agency’s assertion of jurisdiction to regulate Internet-related services. As CNET reported, "[t]his part of the decision is an important victory for the FCC." 740 F.3d 623 (D.C. Cir. 2014)
Time Warner Cable, et al. v. FCC*
Successfully briefed and argued a First Amendment case challenging the facial constitutionality of the FCC’s “program carriage” rules, which prohibit cable companies and other programing distributors from rejecting programming by independent networks based on their unaffiliated status. The 2nd Circuit vacated a provision of the rules authorizing certain interim relief for failure to follow required notice-and-comment procedures, but ruled that the agency could readopt its rule consistent with the Act
. 729 F.3d 137 (2d Cir. Sept. 4, 2013)
Amazon.com, LLC and Overstock.com v. New York State Department of Taxation & Finance*
Successfully briefed and argued on behalf of the State of New York related appeals in which Internet retailers challenged the constitutionality of a New York statute governing the tax-collection obligations of out-of-state Internet retailers—the first statute of its kind. The New York appellate court rejected facial challenges
under the Commerce Clause and Due Process Clause, while describing the case as having “far-reaching ramifications because of the exponential expansion of cyberspace in general, and commerce over the Internet in particular.” 81 A.D.3d 183 (N.Y. App. Div. 1st Dep’t 2010) aff’d, 987 N.E.2d 621 (2013), cert. denied, S. Ct., 2013 WL 4522065 (Dec. 2, 2013)
TCPA class action litigations*
In response to requests from various appellate courts in class action litigations under the Telephone Consumer Protection Act, filed amicus briefs on behalf of the FCC setting forth the agency’s authoritative interpretations of the TCPA. In seeking rehearing as a non-party intervenor in another case, also persuaded the 6th Circuit to amend its opinion allowing a class action plaintiff to collaterally attack an FCC rule exempting certain telemarketing calls from liability under the TCPA; in its amended opinion, the court of appeals agreed with the FCC that the district court lacked jurisdiction to consider the plaintiff’s arguments attacking the agency’s rule.
Eight Mile Style, LLC v. Apple Computer, Inc., et al.
Represented Viacom and MTV Networks in a case brought by Eminem’s music publishing company alleging copyright infringement, false endorsement under the Lanham Act, and unfair competition arising out of use of an Eminem song in a commercial for Apple’s iPod. Case settled.
Spike Lee v. Viacom, Inc.
Represented Viacom and Spike TV in a misappropriation lawsuit filed by filmmaker Spike Lee challenging the launch and branding of Spike TV network. Case settled.
Maharam v. Patterson, et al.
Obtained summary judgment in favor of author James Patterson and his publisher in a copyright action alleging that his children’s book ("santaKid") and related promotional materials infringed plaintiff’s creative works. 2007 WL 2702195 (S.D.N.Y. 2007)
Corbo v. Patterson, et al.
Won pre-discovery motion to dismiss copyright infringement action against author James Patterson, his publishers, and New Line Cinema based on same children’s book. (C.D. 2005)
Gross v. BBC
Represented the BBC in theft of ideas action concerning documentary. 386 F.3d 224 (2d Cir. 2004)
Cargile v. Viacom
Obtained dismissal of theft of ideas claim against Viacom concerning the Rugrats show. 282 F. Supp. 2d 1316 (N.D. Fla. 2003)
People of the State of New York v. Morris*
Strategic advice regarding motion to dismiss indictment and development of legal theories in one of the largest “pay-to-play” securities fraud cases ever handled by the Office of the New York Attorney General, resulting in several guilty pleas and recovery of more than $170 million in civil settlements with various individuals and private equity funds. 2010 WL 2977151 (Sup. Ct. N.Y. County June 29, 2010)
Develop Don’t Destroy (Brooklyn) v. Urban Development Corp.*
Successfully briefed and argued appeal on behalf of the New York State Public Authorities Control Board in a challenge to the $4 billion redevelopment project in the Atlantic Yards area of Brooklyn, N.Y. 59 A.D.3d 312 (N.Y. App. Div. 1st Dep’t 2009)
Matter of World Trade Center bombing litigation
Member of team that, on behalf of broker-dealer Cantor Fitzgerald, persuaded a New York jury to issue a plaintiffs’ verdict on liability following a five and a half week trial in a multimillion-dollar business-interruption case arising out of the 1993 bombing of the World Trade Center. 13 A.D.3d 661 (N.Y. App. Div. 1st Dep’t 2004), rev’d, 17 N.Y.3d 428 (2011)
LMK Psychological Services, PC v. State Farm*
Successfully briefed and argued before the New York Court of Appeals a complex insurance case as amicus curiae on behalf of the New York State Superintendent of Insurance. 12 N.Y.3d 217 (2009)
Trump on the Ocean v. Ash*
Persuaded New York appellate court to lift a preliminary injunction barring a New York State agency from collecting payments under a commercial lease with an entity controlled by Donald Trump. 81 A.D.3d 713 (N.Y. App. Div. 2d Dep’t 2011)
* Denotes experience completed at a prior firm