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Appellate Advocacy 2013


Speaker(s): Cate Stetson, Deepak Gupta, Hon. Brett M. Kavanaugh, Hon. Theodore A. McKee, John P. Elwood, Kevin C. Newsom, Lauren R. Goldman, Richard B. Rosenthal, Roy T. Englert, Jr.
Recorded on: Mar. 20, 2013
PLI Program #: 42922

Deepak Gupta is the founding principal of Gupta Wessler PLLC. He specializes in Supreme Court, appellate, and complex litigation on a wide range of issues, including constitutional law, class actions, and consumers’ and workers’ rights. He has also taught public interest law and appellate advocacy at Georgetown and American universities.

Deepak has briefed and argued a wide range of statutory and constitutional cases before the U.S. Supreme Court, several state supreme courts, and federal appellate courts nationwide. He argued before the U.S. Supreme Court in AT&T Mobility v. Concepcion (2011), a landmark case at the intersection of arbitration, preemption, and class actions. He was lead counsel in Expressions Hair Design v. Schneiderman (2017), arguing on behalf of a group of small merchants in a constitutional challenge to swipe-fees laws brought in the wake of the $7 billion Visa swipe-fee antitrust settlement. More recently, Deepak was appointed by the Supreme Court to brief and argue in support of a judgment left undefended by the Solicitor General in Smith v. Berryhill. He also serves as counsel for the plaintiffs in two cases challenging President Trump's violations of the Constitution's Emoluments Clauses, CREW v. Trump and District of Columbia v. Trump.

Before founding his firm in 2012, Deepak served as Senior Litigation Counsel and Senior Counsel for Enforcement Strategy at the CFPB. As the first appellate litigator hired under Elizabeth Warren’s leadership, he was instrumental in launching the Bureau’s amicus program, defending its regulations, and working with the Solicitor General’s office on Supreme Court matters. For seven years previously, he was an attorney at Public Citizen Litigation Group, where he founded and directed the Consumer Justice Project and was the Alan Morrison Supreme Court Project Fellow. He received his law degree from Georgetown, studied Sanskrit at Oxford, and received his undergraduate degree in philosophy from Fordham.

Deepak serves on the boards of directors for the Alliance for Justice, The Impact Fund, the Biden Institute, the Institute for Consumer Antitrust Studies, the Legal Affairs Committee of the American Association for Justice, and the Class Action Preservation Committee of Public Justice.


Lauren Goldman serves as co-head of Mayer Brown's worldwide Litigation & Dispute Resolution practice and is a member of the Firm's Partnership Board. She practices in the Supreme Court & Appellate group in the firm’s New York office. Lauren has briefed and argued numerous appeals addressing issues of importance to the business community in state and federal courts around the country.

Lauren’s practice is not limited to the appellate courts: she has extensive experience litigating complex legal issues at all levels. In the past five years, she has served as lead legal strategy counsel in connection with more than a dozen high-stakes jury trials, including two cases in which the plaintiffs unsuccessfully sought more than $1 billion in damages. Lauren works closely with trial teams to obtain legal rulings that maximize their ability to obtain a defense verdict, as well as handling all aspects of appellate preservation before, during, and after trial. Lauren has a particular focus on mass actions, and has worked with trial teams to develop legal arguments and strategy in several recent and pending class actions in state and federal courts.

According to Legal 500, clients say that Lauren is "super client-focused, extremely responsive, an excellent writer, and a poised and prepared oral advocate." They describe her as “smart, hardworking, and very analytical,” with an “unmatched ability to work well with other lawyers.” Lauren has been interviewed about Supreme Court developments on CNBC’s “Closing Bell” and FoxBusiness’s “Happy Hour,” as well as by the WSJ Law Blog, The American Lawyer, Newsweek, and the National Law Journal, and has been quoted in the Wall Street Journal, Forbes, Fortune, and CNNMoney, among other publications.

Lauren is particularly experienced in briefing and arguing punitive damages issues; she has worked on many successful appeals from large punitive awards, including Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007). Lauren has also handled legal issues at retrials limited to the amount of punitive and/or compensatory damages in Oregon, California, and Florida; in each case, the retrial jury awarded a fraction of the original jury’s verdict. Lauren writes and speaks regularly on the subject of punitive damages law and is a co-author of the chapter on punitive damages in the West treatise Business and Commercial Litigation in Federal Courts.

Lauren also writes and speaks often about appellate practice more generally, and is a co-author of Mayer Brown’s Federal Appellate Practice treatise, published by BNA Books in December 2008 and again in December 2013.

Lauren received her JD magna cum laude from New York University School of Law, where she was Order of the Coif and a member of the Law Review. In addition, she won the law school’s moot court competition. Following graduation, she served as a law clerk to Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit.


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


Roy Englert is a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, a Washington firm he co-founded in 2001. From 1989 to 2001 he was with Mayer Brown in its Washington office. From 1986 to 1989 Roy was an Assistant to the U.S. Solicitor General.

Roy has argued 20 cases in the Supreme Court, the first in 1987 and the most recent in 2011. He expects to argue his 21st, American Trucking Associations v. Los Angeles, in April 2013. Baze v. Rees (involving the constitutionality of Kentucky's lethal-injection protocol for carrying out the death penalty) and Stern v. Marshall (involving Anna Nicole Smith, Article III of the Constitution, and the Bankruptcy Code) are among his wins in Supreme Court arguments.

In the spring of 2013 (probably May 22), Roy will argue against Pam Karlan in a reenactment of Flood v. Kuhn, the case in which the Supreme Court reaffirmed professional baseball's antitrust exemption. Justice Sotomayor is expected to preside.

Roy is proudly married to Daniel Boettcher and therefore has more than an academic interest in Windsor v. United States, which will be argued March 27, 2013.

Roy also argues cases in the courts of appeals. He argued a FERC case in the Second Circuit September 10, 2012, and is involved in litigation against the Republic of Argentina, which will have been argued by the time the PLI Appellate Advocacy seminar takes place. He has also argued in the D.C., First, Third, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits.

Roy was appointed in late 2010 by the Chief Justice to be a member of the Standing Committee on Rules of Practice and Procedure, and in late 2012 was asked by the chair of the committee, Judge Sutton, to be liaison to the Advisory Committee on Bankruptcy Rules. He was President of the Edward Coke Appellate Inn of Court in 2008-2009.  He has served as an Adjunct Professor at the Georgetown University Law Center, working with the Appellate Litigation Clinic, since 2002. He holds or has held advisory positions with the Supreme Court Historical Society, the National Chamber Litigation Center of the U.S. Chamber of Commerce, and the Georgetown Supreme Court Institute.  He is a fellow of the American Academy of Appellate Lawyers.

Roy considers his judo and theater activities more interesting than all of those legal activities. Among other things, Roy was present at the London Olympics on August 2, 2012, when Kayla Harrison became the first American, male or female, ever to take an Olympic gold medal in judo. Kayla Harrison was featured along with R.A. Dickey in a Sports Illustrated cover story on December 17, 2012.

Roy received an A.B. in mathematics in 1978 from Princeton University. He received a J.D. in 1981 from Harvard Law School, where he was executive editor of the Harvard Law Review. Roy clerked on the D.C. Circuit in 1981-1982. 


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.


One of five firm lawyers to have clerked at the U.S. Supreme Court, Kevin Newsom is chair of the firm’s appellate group. Before joining the firm, Kevin served as Alabama's Solicitor General. Kevin has argued four cases in the U.S. Supreme Court and at least 35 more in the U.S. Courts of Appeals for the Second, Third, Fourth, Fifth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits, as well as in state supreme and appellate courts. Kevin also regularly briefs and argues critical motions in trial courts and the JPML.

Pursuant to the appointment of Chief Justice John Roberts, Kevin serves on the 10-person Advisory Committee on Appellate Rules, which considers amendments and improvements to the Federal Rules of Appellate Procedure.

Kevin is an elected Fellow of the American Academy of Appellate Lawyers, holds a "Tier 1" ranking for appellate law in Chambers USA, and is listed in The Best Lawyers in America in the field of appellate law. In 2007, The American Lawyer magazine named Kevin one of its "Fab Fifty"—the top 50 litigators in the country under the age of 45—and in 2010, Law360.com named Kevin one of the nation’s top 10 appellate lawyers under the age of 40.

Kevin served as a law clerk to Justice David Souter of the U.S. Supreme Court and to Judge Diarmuid O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit. Kevin received a B.A. from Samford University, summa cum laude, and his J.D. from Harvard Law School, magna cum laude, where he served on the Harvard Law Review.


Brett Kavanaugh was appointed to the U.S. Court of Appeals for the D.C. Circuit on May 30, 2006. Judge Kavanaugh graduated from Yale College in 1987 and from Yale Law School in 1990, where he was a Notes Editor of the Yale Law Journal. After law school, he served as a law clerk to Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit and then for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. In 1992-93, Judge Kavanaugh worked as an attorney in the Office of the Solicitor General of the United States. During October Term 1993, Judge Kavanaugh served as a law clerk to Justice Anthony M. Kennedy of the U.S. Supreme Court. From 1994 to 1997 and for a period in 1998, Judge Kavanaugh was Associate Counsel in the Office of Independent Counsel Kenneth W. Starr. Judge Kavanaugh was a partner at Kirkland & Ellis in Washington, D.C., from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, he served as Associate Counsel and then as Senior Associate Counsel to the President. From July 2003 until his appointment to the court in 2006, he was Assistant to the President and Staff Secretary to President George W. Bush. For the last six years, Judge Kavanaugh has taught full-term courses on Separation of Powers at Harvard Law School.


John P. Elwood is a partner in the appellate practice in the D.C. office of Vinson & Elkins LLP. He served as senior Deputy Assistant Attorney General in the Office of Legal Counsel and as an Assistant to the Solicitor General. While in the Justice Department, John also served as a member of the Advisory Committee on Federal Rules of Criminal Procedure. John has received both the Attorney General’s Award for Exceptional Service and the Attorney General’s Award for Distinguished Service — the Justice Department’s two top awards for lawyers.

After graduating from law school, John clerked for Judge J. Daniel Mahoney of the U.S. Circuit Court of Appeals for the Second Circuit and Supreme Court Justice Anthony Kennedy.

John is a lecturer at the University of Virginia School of Law. He is also a regular contributor to SCOTUSBlog and occasional contributor to the Volokh Conspiracy blog.

He earned his A.B. from Princeton University, his M.A. from King’s College London, and his J.D. from Yale Law School.


Judge Theodore A. McKee was sworn in as a Judge of the U.S. Court of Appeals for the Third Circuit on June 20, 1994; in 2010 he became Chief Judge. He is only the fourth African-American to serve on the Third Circuit bench. Judge McKee graduated magna cum laude from Syracuse University College of Law in 1975. A native of Rochester, New York, Judge McKee graduated from the State University of New York at Cortland.

Upon graduation from law school, Judge McKee began his legal career in Philadelphia at Wolf, Block, Schorr & Solis-Cohen. He left there in 1977 to become an Assistant U.S. Attorney for the Eastern District of Pennsylvania. His position as an Assistant U.S. Attorney was the beginning of a career in public service. He left the United States Attorney's Office in 1980 to become a Deputy City Solicitor in the administration of then mayor, William Green. There, he headed the enforcement division of the city's law department. In 1983 he accepted a position as General Counsel to the Philadelphia Parking Authority, and then ran successfully for the Court of Common Pleas, where he served for over 11 years. Toward the end of his first term on the Court of Common Pleas he was granted an assignment to the Orphans' Court, thus becoming the first African American to be assigned to that court.

Judge McKee is quite active in the community, and serves on the boards of directors of several non-profit organizations and institutions including the Vera Institute of Justice,  and the Advisory Committee of City Year Philadelphia. He was a member of the Third Circuit Task Force on Equal Treatment in the Courts, and co-chaired the Commission on Racial and Ethnic Bias of the Task Force. Judge McKee has also served on the Pennsylvan ia Sentencing Commission, and was the chair of the Commission for nearly four years during which time he chaired a subcommittee charged with reexamining Pennsylvania's sentencing guidelines. He has also served on the Council of the Criminal Justice Section of the American Bar Association and the Criminal Law Committee of the Judicial Conference of the United States.

Judge McKee is a Trustee of Temple University and Syracuse University and recently became an Advisor to the American Law Institute's Committee on Revising the Model Penal Code, and is a member of the ABA Commission on Effective Criminal Sanctions. Rutgers University College of Law has recognized his commitment to public interest law and community involvement by awarding him its annual Mary Philbrook Public Interest Award, and he has  Honorary Doctorate of Humane Letters degrees from  the Trustees of the State University of New York, and Widener University College of Law.

Judge McKee has traveled to Moscow to address the Council of Russian Judges on the "Importance of an independent Judiciary,")," and Ghana to work with the Ghanian judiciary. Although he is not a historian, in 2001, the United States House of Representatives appointed him to serve as a Member of the Advisory Committee to the Congressional Commission to Commemorate the 250'" Anniversary of the Birth of James Madison.