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Appellate Advocacy 2018


Speaker(s): Brian R. Matsui, Cate Stetson, Hon. Susan Phillips Read (Ret.), Mark D. Harris, Rajeev Muttreja, Richard B. Rosenthal, Scott A. Chesin, Stephen Kinnaird
Recorded on: Apr. 19, 2018
PLI Program #: 220550

Brian R. Matsui is a partner in Morrison & Foerster LLP’s Appellate and Supreme Court Practice Group. He represents clients from a diverse set of industries in appellate litigation in both federal and state appellate courts.

Mr. Matsui has substantial experience in the federal courts of appeals, having represented clients in appeals in almost every federal appellate court.

Mr. Matsui has briefed and argued many cases in the Federal Circuit. In particular, Mr. Matsui has significant experience on appeals to the Federal Circuit from decisions from the Patent Trial and Appeal Board. He has argued patent appeals on behalf of companies in varied industries including mobile device manufacturers, pharmaceutical companies, medical device companies, memory manufacturers, movie studios, and software companies.

Additionally, Mr. Matsui has extensive experience arguing and briefing appeals in the Ninth Circuit on a wide range of issues. Recently, he has represented leading financial services companies in appeals throughout the nation and prevailed in a D.C. Circuit appeal against the Securities and Exchange Commission involving the retroactivity of certain provisions of the Dodd-Frank Act.

Mr. Matsui has been involved in more than 35 cases before the Supreme Court of the United States. He has had a lead role in the briefing of merits cases involving the interpretation of the Federal Aviation Administration Authorization Act of 1994, the Bankruptcy Code, the Patent Act, and the Dormant Commerce Clause.

Mr. Matsui also dedicates significant time to the less fortunate in pro bono practice. He led the Morrison & Foerster team that was co-counsel for petitioner Terrance Graham in Graham v. Florida, 130 S. Ct. 2011 (2010)—in a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime. He also successfully represented a putative class of foster care children in a high-profile abuse and neglect case in the Ninth Circuit in Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012).

Prior to entering private practice, Mr. Matsui clerked for Justice Anthony M. Kennedy of the Supreme Court of the United States, Judge Pamela Ann Rymer of the United States Court of Appeals for the Ninth Circuit, and Judge David F. Levi of the United States District Court for the Eastern District of California.

Mr. Matsui previously chaired (from 2012-2015) the ABA’s seven-person Standing Committee for Amicus Curiae Briefs, which oversees preparation of ABA briefs for filing before the Supreme Court and other courts. He is currently a member of the amicus curiae committee for the American Intellectual Property Law Association, and he was the co-chair of the amicus curiae brief committee for the National Asian Pacific American Bar Association. Mr. Matsui previously served a three-year term as an Appellate Lawyer Representative for the Ninth Circuit, having been selected by the Court of Appeals for that position. Mr. Matsui served as a board member for the D.C. Circuit Historical Society.


Mark Harris is a partner at Proskauer Rose LLP and co-head of its Appellate Practice Group, which was honored in 2011 by Law360 as one of five Appellate Practices of the Year nationally, and by the National Law Journal with a spot on its annual “Appellate Hot List.”  Most recently, the American Lawyer named Mark its “Litigator of the Week” for his representation of Biosig Instruments before the Federal Circuit and the U.S. Supreme Court.  Mark is also a member of Proskauer’s White-Collar Defense & Investigations and Securities Litigation Groups, concentrating his practice in the areas of white-collar criminal defense and related litigation, and representing both institutional and individual clients in government investigations and prosecutions.

Mark is a former clerk to U.S. Supreme Court Justices John Paul Stevens and Lewis Powell, Jr., and to Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit. Mark served as an Assistant U.S. Attorney for the Southern District of New York, during which he prosecuted a broad spectrum of federal crimes, including health-care fraud, financial fraud, and corporate embezzlement, and tried a number of jury trials and argued before the Second Circuit.

Mark has handled dozens of cases in the U.S. Supreme Court and other appellate courts in areas spanning criminal law, sentencing, copyright, labor relations, employment law, and administrative law.  In 2015, he successfully represented Nextel Communications before the Second Circuit, which vacated the certification of a class of hundreds of former employees who had brought fiduciary and other claims against the company.  In some of his other major cases, he served as co-counsel to the petitioner in Hill v. United States, in which the Supreme Court applied the Fair Sentencing Act of 2010 to benefit defendants retroactively; he helped persuade the Second Circuit to reverse the conviction of a former Gen Re executive; he successfully represented electronic publishers before the Supreme Court in Reed Elsevier Inc. v. Muchnick, named the 2010 “U.S. Copyright Case of the Year” by Managing Intellectual Property Magazine; and he briefed and argued the American Bar Association’s successful challenge to the Federal Trade Commission’s “Red Flags Rule.”

Since 1996, Mark has been a member of the Board of Editors of the Federal Sentencing Reporter and a frequent contributor. His work on behalf of non-U.S. clients was featured in the American Lawyer’s 2006 Litigation supplement. He has lectured on both appellate practice and criminal law before the International Bar Association, the National Association of Criminal Defense Lawyers, PLI, and the ABA Sections of Litigation, Criminal Law, and Employment and Labor Law.  He has appeared on WCBS-TV , NY1, Bloomberg Radio, FM News 101.9, and WINS AM-1010, and has been featured in the National Law Journal, New York Law Journal, Law360, Legal Times, and other publications.

Related Practices

Appellate

White Collar Defense & Investigations

Securities Litigation

Non-Compete & Trade Secrets

Education

Harvard Law School, J.D., 1992
magna cum laude

Supervising Editor, Harvard Law Review

Harvard College, A.B., 1989
magna cum laude
Phi Beta Kappa

Bar Admissions

New York

Illinois

District of Columbia


Richard B. Rosenthal is a solo appellate lawyer who handles appeals across the country, often on behalf of plaintiffs, from his offices in Miami and San Francisco.  He is a former law clerk to the Honorable Levin H. Campbell of the U.S. Court of Appeals for the First Circuit, and to the Honorable Edward B. Davis, Chief Judge of the U.S. District Court for the Southern District of Florida.

Mr. Rosenthal has served as a personal attorney to Barack Obama and as Statewide Lead Counsel to the Obama for America presidential campaign in Florida.  His clients have also included two United States Senators; a sitting Chief U.S. District Judge; a retired Appellate Justice from California; Secretary of Defense Medal of Freedom recipients; a Hall of Fame baseball star; a major political party in Florida; the nation’s largest independent record label; a police labor union; various nonprofit organizations, trade, and professional associations; and individuals of every background and station.

Mr. Rosenthal has achieved the rare distinction of having been named simultaneously to “Super Lawyer” and “Best Lawyer” lists in two states: Florida and California.  He is a frequent speaker at continuing legal education events, has served as an adjunct professor of law, and has delivered guest lectures at various law schools including Yale, Columbia, Stanford, Michigan, as well as international lectures on the topic of American Democracy and American Values at law schools in Siberia, Kyrgyzstan, and Ukraine.  He can be reached at rbr@rosenthalappeals.com


Scott Chesin is a partner in the Supreme Court and Appellate practice in Mayer Brown’s New York office. He handles appeals in state and federal courts throughout the country, and he regularly partners with trial lawyers at Mayer Brown and at other firms to develop legal strategies applicable to all phases of litigation: pre-trial, trial, post-trial, and appeal. Scott has experience litigating a wide variety of substantive legal issues; his particular areas of interest are product liability defense, punitive damages, and criminal defense. According to Legal 500, Scott is an “appellate specialist” who comes “highly recommended” by clients. In 2013, the New York Law Journal named Scott to its list of “Rising Stars” – lawyers under 40 who are “top contributors to the practice of law and their communities.” He has been listed as an appellate “Rising Star” by New York Super Lawyers since 2014. Also in 2014, he was appointed by the Second Circuit to its Criminal Justice Act panel, through which he accepts court appointments to represent indigent criminal defendants on appeal.

Scott’s appellate practice is national in scope, with a particular focus on New York-based matters: since joining Mayer Brown in 2004, Scott has argued appeals in the U.S. Court of Appeals for the Second Circuit and the Appellate Divisions for the First and Second Departments; he will argue his first case in the New York Court of Appeals in September 2015. Scott has authored approximately 75 appellate briefs, including approximately three dozen filed in the New York appellate courts (the Court of Appeals, the Appellate Divisions, and the Second Circuit), and others filed all around the country (including in the U.S. Supreme Court, the U.S. Courts of Appeals for the Fifth, Seventh, Eighth, and Eleventh Circuits, and multiple state appellate courts.

In addition to handling purely appellate matters, Scott regularly briefs and argues complex issues at the trial-court level. In the past four years, Scott has served as lead legal strategy counsel during ten highstakes jury trials. In addition, he has handled pre-trial motions practice and appellate preservation for over a dozen other cases that have either gone to trial or been resolved prior to trial. As legal strategy counsel before and during trials, Scott handles all aspects of appellate preservation, including drafting and arguing motions in limine, dispositive motions, directed-verdict and post-trial motions, proposed jury instructions and verdict forms, and exhibit objections. Scott regularly publishes and lectures on the subject of appellate preservation.

Scott received his J.D. from Columbia Law School, where he was a James Kent Scholar and a member of the Law Review. He received his A.B., cum laude in History, from Harvard College, where he won the Wendell Phillips Prize for the most promising orator in his class. Following graduation from law school, Scott served as a law clerk to Judge Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit.


Susan Phillips Read joined Greenberg Traurig, LLP in March 2016 as Of Counsel in the firm’s Global Litigation Practice in the Albany and New York City Offices.  Before Joining Greenberg Traurig, she served from January 6, 2003 until August 24, 2015 as an Associate Judge of the Court of Appeals of the State of New York.  During her tenure on the Court of Appeals, Judge Read authored an even 200 signed majority opinions addressing important issues of employment and labor law, including at-will employment and telecommuting; insurance law, including coverage of mental disabilities; conversion of a not-for-profit insurer to a for-profit corporation; tax law, including the constitutionality of New York’s “convenience of the employer” test; criminal law; and commercial law.  She also authored numerous unsigned majority opinions as well as signed dissents addressing such topics as school funding, consequential damages, and the accrual of the statute of limitations in suits against the State.

Judge Read’s majority opinions addressing issues of New York law important to the commercial bar include JMD Holding Corp. v Congress Fin. Corp. (4 NY3d 373 [2005]), which reaffirmed the enforceability of liquidated damages clauses under New York law so long as the amount stipulated is not readily ascertainable or grossly disproportionate to the probable loss reasonably foreseeable at the time of contract execution; Kirschner v KPMG LLP (15 NY3d 446 [2010]), which, in answer to questions posed by the United States Court of Appeals for the Second Circuit and the Delaware Supreme Court, clarified the standard under New York law for imputing an agent’s fraudulent conduct to its principal in the context of an in pari delicto defense; and ACE Sec. Corp. v DB Structured Prods., Inc. (25 NY3d 581 [2015]), a case involving residential mortgage-backed securities, which held that New York ‘s six-year statute of limitations for investors’ claims for breach of representations and warranties accrues at the point of contract execution, not when a sponsor refuses to cure or repurchase the underlying mortgages.

Prior to Judge Read’s appointment to the Court of Appeals, she served as a Judge of the New York Court of Claims (1998-2003; Presiding Judge, 1999-2003), assigned to the New York City District.  Before her appointment to the bench, she practiced law at the Governor’s Counsel’s Office (1995-1997); Bond, Schoeneck and King (1988-1995); the General Electric Company (1977-1988); the State University of New York (1974-1977); and the former United States Atomic Energy Commission (1972-1973).

At the Court of Claims, Judge Read authored hundreds of signed opinions to resolve contract, eminent domain and personal injury actions brought against the State of New York and State-related entities.  As Deputy Counsel to Governor George E. Pataki, she was the day-to-day administrator of the Governor’s Counsel’s Office and in-house counsel for the Division of the Budget, and acted as liaison with the Office of the Attorney General.  During her 11 years at GE and seven years in private practice at Bond, Schoeneck and King, Judge Read counseled clients on commercial matters and transactions and antitrust compliance; defended clients in grievance arbitrations and discrimination actions; conducted internal investigations; and, while at GE, served for five years as the Company’s chief  environmental counsel nationwide, with responsibility for supervising federal and state environmental litigation and negotiations, coordinating with the National Electrical Manufacturers Association (NEMA), representing the Company in federal rulemaking proceedings and rendering compliance advice.

Professional Licenses and Associations

Admitted to the Bar, New York (1974)

Member, New York State Bar Association, New York City Bar Association, Women’s Bar Association of the State of New York, Rensselaer County Bar Association

Member, AAA Roster of Neutrals (Commercial Disputes)

Community Involvement

Director, Saratoga Performing Arts Center, 2008-2016 (Chair, 2012-2016); Trustee of Counsel, 2016-present

Trustee, Historical Society of the New York Courts, 2010-Present

Trustee, Williamstown Theater Festival, 2015-Present

Education

B.A., summa cum laude, Ohio Wesleyan University, 1969 (Phi Beta Kappa, Mortar Board); Distinguished Achievement Award, 2009

J.D., University of Chicago Law School, 1972 (Floyd R. Mechem Prize Scholar)

Other Professional Activities

Author of numerous articles on legal topics in legal and general interest publications; recent publications in legal journals include Statutory Resolution, 12 Green Bag2d 85 (2008); Chief Judge John Loughran, 71 Alb. L. Rev. 1071 (2009); Exemplary Law Books of 2015: Five Recommendations, 2016 Green Bag Alm. 173 (2016); Exemplary Legal Writing 2016:  Books, 2017 Green Bag Alm. 380 (2017)

Co-Chair, Chief Judge’s Committee on Evidence, charged with compiling a guide to New York’s common law and statutory rules of evidence

Commercial Arbitration Experience

Since joining GT, Judge Read has served as a consultant and an expert witness on New York commercial law in international arbitrations of commercial disputes involving substantial sums of money ($500M plus), conducted under the auspices of the AAA, ICC and LCIA.


As a partner in Jones Day’s Issues & Appeals group, Rajeev Muttreja focuses on appellate litigation, motions practice, and trial strategy in federal and state courts. He has argued before the U.S. Courts of Appeals for the Second, Third, Sixth, Seventh, and Ninth Circuits and has drafted briefs in the U.S. Supreme Court, many other appellate courts, and trial courts across the country. Rajeev has extensive experience defending False Claims Act cases, particularly within the health care industry. He also has significant experience with issues of federal jurisdiction, RICO, class actions, corporate governance, securities law, administrative law, the Fair Credit Reporting Act, and many other areas of law.

In his work involving the False Claims Act, Rajeev has played a significant role in such cases alleging Anti-Kickback Statute violations, off-label pharmaceutical marketing, Medicare and Medicaid overbilling, and other purported statutory or regulatory violations. Recently, Rajeev drafted motions to dismiss that won three such cases, in federal courts in New York, Virginia, and Georgia.

Rajeev helped draft the successful petition for certiorari and winning merits briefs in Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846 (2011), which clarified the law of personal jurisdiction. He also argued and won Evans v. Zych, 644 F.3d 447 (6th Cir. 2011), a habeas corpus case presenting a question of first impression on which other circuits had split.

Rajeev maintains an active pro bono practice. He has worked extensively with the National Immigrant Justice Center and is a member of the U.S. Court of Appeals for the Second Circuit’s pro bono panel.

Rajeev holds a J.D. magna cum laude from the New York University School of Law and a B.S. in Molecular, Cellular, and Developmental Biology from Yale University.  He clerked for the Hon. John M. Walker, Jr., on the U.S. Court of Appeals for the Second Circuit.


Cate Stetson is an elected member of the Hogan Lovells Global Board and the co-Director of its nationally acclaimed Appellate practice group. One of only four women in Chambers bands 1 and 2, Cate has been described to the press as “tough and smart,” a "superb" advocate and "one of the finest lawyers who appears" in the U.S. Court of Appeals for the D.C. Circuit, and commended for her "brilliance of mind and ability to grasp complicated technical matters."

Cate has argued multiple times in the U.S. Supreme Court, in all but one of the federal courts of appeals, in state appellate courts ranging from New York to California, and in federal district courts from Alaska to Washington, D.C.  She has argued over ninety appeals and briefed hundreds more. Her experience spans appeals presenting questions of administrative law and procedure, antitrust law, the False Claims Act, class certification, civil procedure, and constitutional, contract, copyright, employment, energy, environmental, food and drug, healthcare, insurance, patent, telecommunications, and tort law.

Before joining Hogan Lovells, Cate served as a judicial clerk to The Honorable Stanley S. Harris of the U.S. District Court for the District of Columbia and The Honorable David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit.


Stephen Kinnaird is a partner at Paul Hastings LLP and co-chair of its Appellate Practice. He has represented clients in numerous cases in the United States Supreme Court, the federal courts of appeals and district courts, and state appellate courts. Mr. Kinnaird has handled matters involving intellectual and real property, antitrust, environmental, transportation, administrative, criminal, tort, and constitutional law, among others.

Mr. Kinnaird has briefed and argued multiple cases in the U.S. Supreme Court.  He argued Padilla v. Kentucky, in which the Court ruled in favor of firm client Jose Padilla in holding that the Sixth Amendment imposed duties upon defense counsel to advise criminal defendants of the deportation consequences of criminal convictions. Mr. Kinnaird was featured on the cover of the July/August 2010 issue of The American Lawyer in a story discussing Padilla as the capstone of the firm's pro bono initiatives.  Lawyers USA named Mr. Kinnaird one of its nine Lawyers of the Year in 2010.  In 2013, Mr. Kinnaird successfully argued Peugh v. United States, in which the Supreme Court held by 5-4 decision that the Ex Post Facto Clause bars retroactive application of amendments to the advisory U.S. Sentencing Guidelines that raise recommended sentencing ranges.  In 2016, the Supreme Court appointed Mr. Kinnaird as amicus curiae to defend the ruling of the U.S. Court of Appeals for the Ninth Circuit in McLane Co. v. EEOC.  Other notable matters include engagements for:

  • an electronics manufacturer in the U.S. Supreme Court in a case involving removal of mass actions under the Class Action Fairness Act;
  • a major league baseball team in the U.S. Supreme Court in a case involving taxation of back pay;
  • a telecommunications company in the U.S. Supreme Court and the courts of appeals in cases establishing rules of competitive access to network facilities under the Telecommunications Act of 1996 and addressing takings and sovereign immunity defenses;
  • a railroad company in the U.S. Supreme Court in a case addressing the legal standard for causation by contributory negligence;
  • an energy company in the U.S. Supreme Court in a case concerning rights to coalbed methane in property derived from federal land grants;

Prior to entering private practice, Mr. Kinnaird served as a law clerk to Justice Anthony M. Kennedy of the United States Supreme Court, and to Judge John M. Walker, Jr. of the United States Court of Appeals for the Second Circuit. Mr. Kinnaird received a B.A. in English Language and Literature from Yale University, summa cum laude.  He received an M.A. in Philosophy, Politics, and Economics from Oxford University, which he attended on a Rhodes Scholarship. He received a J.D. from Yale Law School, where he served as Articles Editor on the Yale Law Journal and was awarded three faculty prizes for scholarship.