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Appellate Advocacy 2021


Speaker(s): Cate Stetson, Ginger D. Anders, Hon. Tanya R. Kennedy, John E. Roberts, Mark D. Harris, Michael Rayfield, Rachel S. Bloomekatz, Rajeev Muttreja, Richard B. Rosenthal
Recorded on: Apr. 27, 2021
PLI Program #: 306030

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.


Ginger Anders is a partner in the Washington, D.C. office of Munger, Tolles & Olson. Her practice focuses on Supreme Court and appellate litigation, particularly intellectual property, administrative law, and constitutional law.  Notable representations include the Financial Oversight and Management Board for Puerto Rico in defending the Board’s constitutionality before the Supreme Court; the U.S. House of Representatives in defending the Affordable Care Act; Google LLC in various IP matters; and Comcast Corp. in cases involving the statutory authority in the International Trade Commission.  Ms. Anders joined the firm from the U.S. Department of Justice, where she served as an Assistant to the U.S. Solicitor General and a Deputy Assistant Attorney General in the Office of Legal Counsel. During her nearly eight-year tenure as an Assistant to the Solicitor General, Ms. Anders represented the United States before the U.S. Supreme Court in a wide range of noteworthy cases, arguing 18 cases before the Court.  She has extensive experience in intellectual property law, particularly patent law, as well as transnational litigation and the Foreign Sovereign Immunities Act, administrative law and constitutional law. In addition to her numerous arguments before the U.S. Supreme Court, Ms. Anders authored the government’s briefs in 35 cases at the merits stage and in hundreds of cases at the certiorari stage.


Hon. Tanya R. Kennedy was appointed in July 2020 as an Associate Justice of the Appellate Division, First Department by Governor Andrew M. Cuomo.  Prior to her appointment, Justice Kennedy served as a Justice of the Supreme Court, New York County, commencing in January 2016, after election in November 2015.  She was elected to Civil Court in November 2005 and thereafter served in Criminal Court (January 2006-September 2008), Civil Court (September 2008-December 2009), Family Court (January 2010-December 2010), as Acting Supreme Court Justice (January 2011-December 2012) and as Supervising Judge of Civil Court, New York County (January 2014-December 2015).  She is also a former Adjunct Professor at Fordham University School of Law, where she taught a Juvenile Justice seminar for ten years.

Before her election to Civil Court, Justice Kennedy served as Principal Law Clerk to Hon. Barry A. Cozier when he was an Associate Justice of the Appellate Division, Second Department (March 2001-December 2005) and when he was a Justice in the Commercial Division, New York County (May 1999-March 2001). Prior to her clerkship with Justice Cozier, Justice Kennedy served in the Office of the Corporation Counsel, New York City Law Department, as an Assistant Corporation Counsel in the Bronx Family Court Division (August 1992-August 1994) and in the Bronx Tort Division (August 1994-August 1997), where she was promoted to Tort Trial Specialist and later to Assistant Deputy Chief. 

Justice Kennedy is a member of the Board of Directors of the New York City Bar Association and past chair of the organization’s Special Committee to Encourage Judicial Service. She is also an Executive Committee member of the Women in Law Section of the New York State Bar Association; member of the Committee on Pattern Jury Instructions of the Association of Supreme Court Justices of the State of New York; member of the Board of Overseers of the Benjamin N. Cardozo School of Law, where she received her law degree; and an Advisory Board Member of Penn State Law.  Justice Kennedy is also the Past President of the National Association of Women Judges (NAWJ).

A frequent speaker at various conferences, she has received numerous professional awards, including the 2021 John E. Higgins, Esq. Diversity Trailblazer Award from the New York State Bar Association; the 2020 Inspiration Award from the New York Coalition of Women’s Initiatives in Law; and the 2015 Alumni of the Year Award from Benjamin N. Cardozo School of Law. 


John E. Roberts is a partner in Proskauer Rose’s litigation department and co-chair of the firm’s Appellate Practice Group.  His practice focuses on complex civil appeals and commercial litigations.

John has twice represented parties during the merits stage at the United States Supreme Court.  His advocacy in Nautilus Inc. v. Biosig Instruments, Inc. led to a favorable decision by the Supreme Court and ultimately victory on remand before the United States Court of Appeals for the Federal Circuit.  He also drafted a successful petition for certiorari in Acosta-Febo v. Franklin Tax-Free Trust and drafted the merits briefing at the Supreme Court in that case. 

For the past four years, John has represented the Financial Oversight and Management Board for Puerto Rico in the largest municipal bankruptcy case in American history.  More than three dozen appeals have arisen out of that restructuring case.  John has also represented major corporations and organizations in federal and state appellate courts across the country, including the National Basketball Association, the National Football League, Major League Baseball, Charles Schwab, Wells Fargo, Amgen, Church and Dwight, and many others.

John graduated magna cum laude from the New York University School of Law, where he was an articles editor for the New York University Law Review. He received his B.A. in Applied Mathematics cum laude from Harvard University. He served as a judicial clerk to the Honorable Bruce M. Selya, the most prolific opinion-writer in the history of the United States Court of Appeals for the First Circuit. He began his legal career at Cravath, Swaine & Moore in New York.

Before John attended law school, he worked as a journalist for National Public Radio for several years, where he was a co-creator of the national news program, On Point, and won several awards for his reporting.  

John lives in Providence, Rhode Island, with his husband, Michael.

 


Mark Harris is a partner at Proskauer Rose LLP and co-head of its Appellate Practice Group, which was recently named to the National Law Journal’s 2020 Appellate Hot List. He 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, prosecuting a broad spectrum of federal crimes, including health-care fraud, financial fraud, and corporate embezzlement, and trying a number of jury trials and arguing appeals before the Second Circuit.

He is the editor of PLI’s new treatise Principles of Appellate Advocacy: A Guide to Modern Practice (forthcoming 2021), a comprehensive guide to appellate law and strategy.

Mark has handled dozens of cases in the U.S. Supreme Court and other appellate courts in areas spanning criminal law, bankruptcy, copyright, labor relations, employment law, and administrative law. In some of his major cases, he has successfully represented the Financial Oversight and Management Board of Puerto Rico before the First Circuit in more than two dozen appeals arising out of Puerto Rico’s bankruptcy; 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; he represented Biosig Instruments before the U.S. Supreme Court and the Federal Circuit, for which the American Lawyer named him its Litigator of the Week; and he argued a major Establishment Clause case in the Second Circuit.

Since 1996, Mark has been a member of the Board of Editors of the Federal Sentencing Reporter and a frequent contributor. He has lectured on both criminal law and appellate practice 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, and has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360, Legal Times, and other news organizations. He also serves on the Board of Trustees of the National Museum of Mathematics.


Michael Rayfield is a partner in Mayer Brown’s Supreme Court & Appellate practice. He focuses on class actions and other consolidated litigation, primarily in data privacy, product liability, and securities lawsuits. He has argued cases in the Second, Seventh, and Ninth Circuits, as well as a variety of federal and state trial courts around the country. Mike has worked on over two dozen jury trials in all aspects of appellate preservation, including drafting and arguing motions in limine, directed-verdict motions, and proposed jury instructions.

In 2019, Law360 named Mike as one of its “Rising Stars”—a list of “175 attorneys under 40 whose legal accomplishments transcend their age”—in the category of “Cybersecurity & Privacy,” explaining that Mike “has amassed victories for Facebook and other companies over a career that has also been marked by his dedication to pro bono work.”

Among other things, Mike represents Facebook, Instagram, and Shutterfly in putative class actions alleging privacy violations under a state biometrics law, and recently argued a successful summary judgment motion in a suit against Facebook about its facial recognition technology. Mike is experienced in so-called “cookie” litigation—class actions challenging the use of cookies and other online tools to assist with targeted advertising. And Mike has briefed successful motions to dismiss securities class actions against Frontier Communications and Citibank.  

In addition to his work on behalf of corporate clients, Mike is devoted to representing individuals in criminal, immigration, and civil rights cases. Mike has represented clients convicted of murder, armed robbery, sexual assault, and drug trafficking. He represents several immigrants facing deportation from the United States, and has represented multiple prisoners seeking to hold officials accountable for abusive practices. Mike’s past victories include a decision by the Second Circuit reversing the conviction of a client convicted of murder for hire; three rulings by the Seventh Circuit, the Ninth Circuit, and the Board of Immigration Appeals barring the government from deporting immigrants to Mexico, Honduras, and El Salvador; and three other decisions releasing clients from prison or ICE detention. In 2021, the Second Circuit appointed Mike to its Criminal Justice Act panel, through which he accepts court appointments to represent indigent criminal defendants on appeal.

Before joining Mayer Brown in 2013, Mike was a law clerk to Judge Jay S. Bybee of the Ninth Circuit Court of Appeals, and to Judge Nicholas G. Garaufis of the Eastern District of New York. He also spent a year as a litigation associate at another prominent firm. Mike received his JD with high honors from the University of Chicago Law School, where he was a comments editor on the Law Review. He received his undergraduate degree from Cornell University.


Rachel Bloomekatz is a solo practitioner, focusing on Supreme Court, appellate, and complex litigation. Her practice draws on her extensive appellate experience in both the public and private sectors, as well as insights gained from her clerkships with Justice Stephen Breyer on the U.S. Supreme Court, Chief Justice Margaret Marshall on the Massachusetts Supreme Judicial Court, and Judge Guido Calabresi on 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 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.

Some of Rachel’s current and recent matters include:

  • Representing a group of parents in Butler County, Ohio, who are challenging their school district’s decision to arm teachers at school with inadequate training. Co-counsel with Everytown Law.
  • Successfully suing Ohio’s Secretary of State and won a ruling recognizing the right of 17-year-olds to vote in Ohio primaries if they will be 18 years old by the general election.
  • Co-authoring briefing in the U.S. Supreme Court in Hernández v. Mesa, 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. A unanimous Supreme Court reversed the en banc Fifth Circuit’s 15-0 holding that the border guard was entitled to qualified immunity.
  • Arguing and winning a Fourth Circuit appeal defending a major jury verdict and punitive damages award under the Fair Credit Reporting Act.
  • Arguing and winning an appeal of Ohio ratemaking decisions worth hundreds of millions of dollars on behalf of local and national environmental groups in the Ohio Supreme Court.
  • Arguing and winning an appeal in the Sixth Circuit on behalf of victims of predatory lending who had brought a class action against large banking institution.
  • Representing numerous national public-health groups–including the American Medical Association, the American Heart Association, the American Cancer Society Cancer Action Network, and Campaign for Tobacco Free Kids–in courts throughout the country on issues including tobacco control, sugar-sweetened beverages, federal regulatory policy, preemption, and the First Amendment.
  • Successfully briefing and arguing an Ohio Supreme Court appeal challenging the 112-year sentence of a juvenile defendant on Eighth Amendment grounds.

Before starting her own practice, Rachel was a principal at Gupta Wessler PLLC. Before that, she was an associate at Jones Day in the renowned Issues and Appeals practice 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. 

 

Though Rachel practices in federal and state courts throughout the country, she lives in Columbus, Ohio. She teaches Federal Courts at The Ohio State University Moritz College of Law.


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 been listed by the National Law Journal as a “Trailblazer” among American plaintiffs’ lawyers.  He has also 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


Cate Stetson is the co-Director of Hogan Lovells’ nationally acclaimed Appellate practice group and a twice-elected member of the firm’s Global Board. Cate has argued one hundred appeals, including multiple times in the U.S. Supreme Court, in all of the federal courts of appeals, and in state appellate courts ranging from New York to California. She has been described to the press as “tough and smart” and “one of the most gifted litigators and orators I have ever encountered,” and commended for her "brilliance of mind and ability to grasp complicated technical matters."