Goodwin Insights November 16, 2020

Q+A With Goodwin’s ‘Hot’ Appellate Group

Goodwin’s Appellate Litigation practice has argued before the U.S. Supreme Court, federal courts of appeals and state appellate courts, representing clients in matters ranging from First Amendment rights to governmental agency challenges. The success of the group has garnered various awards and recognition, including the group’s recent inclusion on The National Law Journal’s Appellate Hot List and practice co-chair Kevin Martin’s selection by the same publication as a 2020 Litigation and Political Activism/First Amendment Rights Trailblazer. Kevin was also recently inducted as a Fellow of the American Academy of Appellate Lawyers.

Our client relations team recently sat down with practice co-chairs Willy Jay and Kevin Martin to get a current state-of-play on SCOTUS and what they see in the coming months for Goodwin clients.

What are your thoughts on the recent confirmation of Justice Amy Coney Barrett and overall change in the Supreme Court’s composition? How do you see the current composition of the Court impacting clients?

Willy: There's often a misperception that a conservative majority on the court means a pro-business majority, and that is definitely not true. Justice Barrett is not necessarily going to be a win for class action defendants or Title VII defendants. She practiced only briefly and doesn’t have a background doing defense-side litigation like Chief Justice Roberts did. So you can’t predict that the court now has a pro-business majority.

During her confirmation hearing, the business-type cases that got the most attention were employment discrimination cases. But, by and large, those were pretty case-specific decisions that were only being brought up because they might animate people to think that she was a racist or sexist or otherwise a horrible person. So while we know quite a lot about her approach to statutory cases generally, we really don't know that much about her approach to business cases. 

We also don't know that much about her approach to administrative law cases. And with Joe Biden’s election, some of the most high-stakes business decisions are going to be cases challenging a new administration’s decision to yank a regulation or policy initiative from the previous administration. And unlike Justice Kavanaugh, Justice Barrett doesn't have that much of a track record on matters like agency deference. 

Kevin: I agree with what Willy said, but I’ll add a couple of glosses. First, it’s important to look at any individual Justice’s own jurisprudence. It’s also important to take into account who they are replacing. In comparison to Justice Ginsburg, business is more likely to find a sympathetic ear with Justice Barrett.

The other gloss I’ll add, Justice Barrett was actually two years ahead of me in her clerkships with both Judge Silberman and Justice Scalia, so I’m personally happy to see her elevated to the Court. Judge Silberman, in particular, was a firm believer in judicial deference to agencies. So I suspect that while she doesn't have much of a track record in regulatory cases in her few years in the Seventh Circuit, she probably did take from her clerkship with Judge Silberman a strong belief that when deciding between unelected judges and agencies of the elected executive branch, the courts should provide some deference to the agencies. I would expect and hope that she maintains that view now that she’s joined the Supreme Court.

Is SCOTUS hearing any particular business matters that stand out in terms of their importance to Goodwin clients or the firm’s industries of focus?

Willy: The fall 2020 term is not a business-heavy term. From the intellectual property law perspective, the most important case pending this term is the challenge to the Patent Trial and Appeal Board in United States v. Arthrex Inc

For our healthcare and pharmaceutical clients, the challenge to the Affordable Care Act is incredibly important. Not just because of what it means for the individual mandate, which is what’s being challenged in the narrow sense, but because the argument the plaintiff U.S. states are making is that the entire statute, every last bit of it, is unlawful. And that would include, for example, the statute that governs biosimilars. Many of our healthcare clients also have stakes in other aspects of the Affordable Care Act.

Kevin: There is a case being heard by the Court in December involving the Alien Tort Statute. In recent decades, groups have tried bringing lawsuits under the Alien Tort Statute against U.S. companies for their overseas operations. It seems likely that the conservative majority of the Court will wind up holding that the statute has application to overseas conduct in which U.S. corporations only have marginal involvement, if any, only under extraordinarily limited circumstances. A Justice Barrett is much more likely than a Justice Ginsburg would have been to hold that the ATS does not really have all that much application to American companies, if at all.

Willy: Another one is a case called Facebook v. Duguid, which we filed an amicus brief in, that deals with the interpretation of the Telephone Consumer Protection Act. Goodwin handles a lot of litigation under the TCPA and the main question that comes up in many of these cases is “Is what I have an auto-dialer?” Because if I don't have an auto-dialer, then I'm not subject to a lot of these rules. One of the cases that created the Ninth Circuit split that is going up to the Supreme Court was written by Justice Barrett, taking the pro-business side of that dispute. So Justice Barrett may be a more receptive ear than Justice Ginsburg.

What are some of the appellate matters that the practice has handled in the past year and what made them unique and/or rewarding to work on?

Kevin: As in years past, much of the appellate work we do is in conjunction with the IP Litigation Group and we have had several successful outcomes for clients in the last year. We had a case that we won last year for our client Dr. Reddy's Laboratories which involved their generic version of an anti-opioid abuse medication, Suboxone® film. When Dr. Reddy’s first launched its generic of Suboxone® film, it was subject to an injunction that was sought and granted on behalf of a brand company. We brought one challenge in the Federal Circuit and managed to reverse the grant of the preliminary injunction, which was great because we were able to get the medication back on the market and get a cheaper version of a lifesaving drug to patients. And even after the preliminary injunction hearing, we then had a subsequent appeal involving the merits case and we were able to get an affirmance of our trial court victory on the merits, again in front of the Federal Circuit.

The IP Litigation team, which included partners such as Elaine Herrmann Blais, Robby Frederickson, Ira Levy, and Alexandra Valenti, then got a third victory in front of the PTAB. We are going to have another appeal on behalf of Dr. Reddy’s involving its generic film this coming year. It’s always fun and gratifying to work with the great trial court teams we have in the IP Litigation Group.

Willy: Although we are the Appellate Group, some of our cases are in trial courts, usually because they are appeals from an administrative agency. The FDA, for example, blocked our clients from bringing a long-acting opioid medication to market on the grounds that a competitor got there first and had the rights to market for the first three years of this drug. We were able to convince the district court here in D.C. to overturn the FDA and send it back. Our client is getting ready to launch that medicine next month.

Kevin: I also want to highlight some of the work the more junior members of our group have done the last couple of years, both at the U.S. Supreme Court and in lower federal and state courts. In the past few weeks, Jaime Santos had arguments in both the Second and Tenth Circuits. Younger partners in the group like David Zimmer and Brian Burgess have had multiple appeals heard at the U.S. Supreme Court on behalf of pro bono clients. The group as a whole is doing a lot of pro bono work, getting great experience while doing good for some of the poorest members of society. It is something that we highly encourage members of the group to do.

I understand we have an upcoming SCOTUS argument relating to immigration rights. Can you speak a bit about the upcoming argument and its importance?

Willy: David Zimmer is handling the case. David argued before the Supreme Court when he was still an associate on an issue having to do with which immigrants are eligible to seek what is called “cancellation of removal.” Even when you are in removal proceedings, if you have been in the United States for a certain number of years and have strong ties to this country, your deportation can be canceled, and you actually get a green card if you don’t already have one.

David won a case at the Supreme Court two years ago that expanded eligibility for cancellation by changing how to calculate how long one has been in the country. Since David won that case, the government has been trying to limit the impact of the decision and minimize the number of immigrants who became eligible for cancellation. In the aftermath of the ruling, lower courts very quickly got into two different camps on how to interpret that decision. Now David has successfully petitioned the Supreme Court to take the matter up again.

Our client in the prior case was a handyman from Edgartown, Massachusetts with a clean criminal record who has two children who are U.S. citizens. He had lived here long enough to qualify for cancellation of removal — depending on when he received his Notice to Appear. But when he got his notice, some information was left out. The government revealed it left out that information in 99% of the cases. Now the government is trying to say that as long as it provides that information later, it can still stop the clock and have people deemed ineligible.

Kevin, you were recently recognized by The National Law Journal as a Political Activism and First Amendment Rights Trailblazer. Can you speak about the importance of litigating the type of First Amendment matters that earned you this recognition?

Kevin: It seems like in modern America people are ever less likely to hear each other's points of view if they're opposing, and ever less likely to listen and to engage. Conservatives can go listen to Fox News; liberals can listen to MSNBC. There's just very little tolerance for each other.

The Supreme Court has recognized in recent decisions that speech on streets plays a unique role in public discourse because it's someplace where you really can't tune somebody out. Somebody with a sign on a street, if you're driving by them or walk by them, you see them and you look at them and they can get their message across to you. It's also a cost effective way for people who don't have resources for banner ads on the internet to get their message across.

In a series of cases starting in 2013, we represented groups of homeless individuals, groups of individuals protesting, and local politicians, who had been standing on streets, on medians, on the grassy areas inside of traffic circles, whether to hold signs protesting a war, campaigning for office or asking for money from a passersby. We worked with ACLU chapters, homeless shelters and homeless individuals to bring lawsuits against these laws in places as diverse as Maine, Massachusetts, Florida, Virginia, and New Mexico.

We were successful in just about all the cases we brought challenging these laws, with courts recognizing that government cannot say it’s too dangerous to stand by the road or it’s too inconvenient to people to have someone ask them for money when they're walking down the street. That is not a good enough basis to criminalize speech and to drive particular types of speech out of public forums.

The associates on these teams received a lot of great experience as well. Probably close to 70 lawyers at Goodwin, at one point or another, have worked on these cases and made a difference in the lives of some of the least fortunate members of society. I ended up getting this recognition, but it was a group effort by Goodwin.

Are there particular areas of specialization that our appellate practice is focused on that you think will see high profile appellate legal battles in the coming year?

Willy: Class actions are an important area. In a pandemic there are a number of things affecting the economy in ways that tend to produce class action litigation down the road. During the last financial crisis, anything having to do with mortgages eventually produced litigation between borrowers and mortgage companies, or mortgage servicers or financial institutions, generally. We are expecting that there will be a wave of COVID and economic downturn-related litigation.

We are already seeing legal issues that came out of COVID such as peoples’ reliance on the instructions given by the government early on. Can you be sued for doing what the CDC or other regulators told you early in the pandemic when the advice has changed in the recent months?

The third area I would highlight is ERISA. At a time when the economy has been volatile, there have been several cases brought against companies with an ERISA plan, generally, and an employee stock ownership plan, specifically. Those have been active targets for the plaintiff’s bar. ERISA is something we’ve done a lot of work on in district court, in the court of appeals and, last term, we took an important case on the burden of proof in those cases to the Supreme Court. The Court decided not to review the issue at that time, but that issue is still out there and we expect to be involved in bringing that back to the Supreme Court in the future.