Since joining Goodwin, Mr. Burgess has handled complex litigation matters in the Supreme Court; in the First, Second, Third, Fourth, Sixth, Ninth, D.C. and Federal Circuits; in several state appellate courts; in bankruptcy court; and in numerous federal and state trial courts.
Mr. Burgess has briefed and argued several significant recent appeals:
- Successfully defended class-action settlement in antitrust litigation in the Second Circuit on appeal raising issue of first impression concerning the authority of claims administrators to opt customers out of class actions. See In re Aggrenox Antitrust Litig., 2020 WL 2146901 (2d Cir. May 5, 2020).
- Successfully represented the National Mining Association in the D.C. Circuit in defense of the decision by the Environmental Protection Agency not to finalize new “financial responsibility” requirements for the hardrock mining industry under Section 108(b) of CERCLA. Presented oral argument on behalf of coalition of industry intervenors. See Idaho Conservation League v. Wheeler, 930 F.3d 494 (D.C. Cir. 2019).
- Persuaded the U.S. Supreme Court to grant certiorari in two matters in the 2019 Term, led merits briefing, and presented oral argument. See Banister v. Davis (argued Dec. 4, 2019, decision pending); Lomax v. Oritz-Marquez (argued Feb. 26, 2020, decision pending)
- Successfully defended judgment for BarBri, Inc. in affirmance of claims brought by a bar-exam competitor under the Sherman Act and RICO. Mr. Burgess co-authored motion to dismiss briefing in litigation in the Southern District of New York, and then led successful appellate effort in the Second Circuit. See LLM Bar Exam, LLC v. BarBri, Inc., 922 F.3d 136 (2d Cir. 2019).
- Successfully represented client in the D.C. Circuit in a litigation that resulted in the dismissal of a challenge to a shipping client’s eligibility to participate in the “Maritime Security Program” administered by the Maritime Administration and the Department of Defense. See Matson Navigation Co. v. U.S. Dep’t of Transp., 895 F.3d 799 (D.C. Cir. 2018).
- Persuaded the Washington Court of Appeals to grant interlocutory review and then reverse the denial of clients’ motion for summary judgment in product liability case involving the prescription drug metoclopramide. The decision rejected an effort by the plaintiff to expand the scope of a drug company’s duty to warn under state law to extend beyond the warnings provided with a product’s package insert. See Sherman v. Pfizer, Inc., P.3d, 2019 WL 1923583 (Wash. App. 2019).
Mr. Burgess’s other significant matters include:
- Led merits briefing in several matters in the U.S. Supreme Court. Co-authored brief and served as second-chair in Supreme Court litigation concerning the test for whether an artistic design feature can qualify for a copyright. Mr. Burgess represented the copyright owner, which designed original artwork appearing on clothing. The Supreme Court held by a vote of 6-2 that the designs were copyright-eligible. Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).
- He defended companies in several putative class actions challenging patent litigation settlements on antitrust grounds, initiated after the Supreme Court's decision in FTC v. Actavis, 133 S. Ct. 2223 (2013). Led briefing efforts on motions to dismiss and oppositions to class certification, in both district and appellate courts. He also represented leading trade associate in filing numerous amicus curiae briefs on issues arising in antitrust litigation involving patent settlements.
- Co-authored brief in D.C. Circuit on behalf of a pharmaceutical company defending approval of its new drug application against a competitor’s exclusivity challenge. The D.C. Circuit upheld FDA’s approval of our client’s application in a decision that set an important precedent on the scope of 3-year exclusivities for new clinical investigations. Otsuka Pharm. Co. v. Price, 869 F.3d 987 (D.C. Cir. 2017).
- Co-authored briefs in the Second Circuit on behalf of a major banking client in a putative class-action alleging violations of the Racketeering Influenced and Corrupt Organizations Act based on the rates charged for lender-placed insurance. Successfully obtained interlocutory review and reversal of adverse judgment resulting in an order to dismiss all claims. Rothstein v. Balboa Insurance Company, 794 F.3d 256 (2d Cir. 2015).
- Co-authored briefs on behalf of a leading pharmaceutical manufacturer and several other intervenors in a suit against FDA seeking to stop the launch of generic versions of the drug Abilify.® Successfully opposed a preliminary injunction and then obtained summary judgment.
- Co-authored several briefs in opposition to petition for certiorari in the Supreme Court, including a brief in a First Amendment challenge to a transit authority’s advertising policy, a brief concerning the rules for claim construction in patent litigation, and a brief in opposition to the Michigan Attorney General on an issue arising under the Sixth Amendment.
- Presented oral argument and successfully persuaded the Fourth Circuit to vacate in a pro bono matter challenging a county’s anti-panhandling ordinance as inconsistent with the First Amendment. Reynolds v. Middleton, 779 F.3d 222 (4th Cir. 2015).
