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Appellate Advocacy 2015


Speaker(s): Alexandra A.E. Shapiro, Cate Stetson, Deepak Gupta, Hon. Judith S. Kaye, Kevin C. Newsom, Mark D. Harris, Richard B. Rosenthal, Scott A. Chesin
Recorded on: Jun. 2, 2015
PLI Program #: 58423

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 a United States Senator from Iowa; 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, the Odessa Law Academy at the National University of Ukraine, and Tyumen State University in Siberia, Russian Federation.  He can be reached at rbr@rosenthalappeals.com


Alexandra Shapiro is a partner and co-founder of Shapiro Arato LLP, a New York litigation boutique.

Alexandra is an experienced trial lawyer and appellate advocate. She has argued many appeals in federal and state appellate courts, including most recently, Salman v. United States, a major insider trading case in the Supreme Court of the United States.  Alexandra has also tried numerous cases.  She has expertise in a broad range of substantive areas, including securities law, tax fraud, public corruption, criminal law, and intellectual property.  A particular focus of her practice has been the defense of lawyers and law firms.

Notably, over the past decade Alexandra has won a series of appellate reversals of criminal convictions in significant white collar prosecutions.  These victories include three Second Circuit rulings granting judgments of acquittal to clients who had been convicted of insider trading or tax shelter fraud in the Southern District of New York, as well as several decisions granting new trials for other clients convicted of tax-related crimes, insider trading, accounting fraud, and obstruction of justice.

Alexandra has conducted internal investigations on behalf of corporations, corporate boards, and Audit Committees. She has assisted clients in developing and implementing regulatory compliance programs.  She served as President of the New York Council of Defense Lawyers, a not-for-profit professional association of about 250 experienced lawyers whose principal area of practice is the defense of criminal cases in the federal courts in New York.

Prior to co-founding her firm in 2009, Alexandra was a partner of Latham & Watkins LLP, and before that, an Assistant U.S. Attorney in the Southern District of New York, where she also served as Deputy Chief Appellate Attorney.  She clerked for Justice Ruth Bader Ginsburg of the Supreme Court of the U.S. and for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit, and served as an attorney-adviser in the Office of Legal Counsel of the U.S. Department of Justice.

Alexandra received her J.D. from Columbia University School of Law; she graduated first in her class and was an articles editor of the Columbia Law Review. She received her B.A. from Williams College, graduating magna cum laude and with Honors in History.


Judith S. Kaye joined Skadden in 2009 and focuses her practice on appellate litigation and arbitration. Before joining the firm, she served as chief judge of the State of New York and chief judge of the Court of Appeals for 15 years, until her retirement in 2008. She was appointed to the court in 1983 by Governor Mario Cuomo, becoming the first woman ever to serve on New York’s highest court.

Judge Kaye gained a national reputation for both her groundbreaking decisions and her innovative reforms of the New York court system. She wrote notable decisions on a wide variety of statutory, constitutional and common law issues, including rights for gay couples and the death penalty. Judge Kaye also left her mark on New York’s courts as a creative reformer, streamlining New York’s jury system and establishing specialized courts to focus on issues such as drug addiction, domestic violence and mental health issues. In addition, she created the Adoption Now program that has produced more effective procedures for children in foster care and their families. Her reforms have been implemented by many other state courts. Before her appointment to the bench, she practiced law at Sullivan & Cromwell, IBM and Olwine, Connelly, Chase, O’Donnell & Weyher, where she became that firm’s first female partner.

Judge Kaye is the author of more than 200 publications, including articles on legal process, state constitutional law, women in law, juvenile justice, professional ethics and problem-solving courts. She frequently speaks on these topics, as well as those that pertain to international arbitration. She has acted as an arbitrator or panel chair in a broad spectrum of international and U.S. commercial disputes.

She has received numerous awards recognizing her judicial and scholarly accomplish­ments, such as the New York State Bar Association’s inaugural Distinguished Jurist Award, New York State Bar Association’s Gold Medal, the ABA Justice Center John Marshall Award, the National Center for State Courts’ William H. Rehnquist Award for Judicial Excellence, the ABA Commission on Women in the Profession’s Margaret Brent Women Lawyers of Achievement Award, the U.S. Department of Health and Human Services’ Adoption Excellence Award, the New York Law Journal’s Lifetime Achievement Award and the New York University School of Law’s Judge Edward Weinfeld Award. In 2014, Judge Kaye also was selected by Harvard Law School as an honoree for its inaugural International Women’s Day Exhibition.

Selected Publications

  • “International Arbitration: A Page of History,” New York Law Journal, June 9, 2014
  • “A Spirit of Liberty: A Perpetual Anniversary,” New York Law Journal, May 1, 2014
  • “An International Arbitration Perspective on Judging,” New York Law Journal, November 21, 2013
  • “Effective Appellate Advocacy,” Practical Law The Journal, September 2013
  • “International Arbitration: A Page From My ‘After-Life,’” New York Law Journal, February 6, 2013


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


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.


Deepak Gupta is the founding principal of Gupta Wessler PLLC, a national appellate boutique in Washington, DC, with an emphasis on consumers’ and workers’ rights, class actions, and constitutional law. He is also an Adjunct Professor of Law at both 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. Deepak’s clients have included sitting federal judges, members of Congress, classes of consumers and workers, technology companies, retail merchants, professional athletes, individual lawyers, and national non-profit organizations. He is frequently sought out by leading trial lawyers to defend their clients’ most consequential victories or to resurrect worthy claims on appeal, often after years of hard-fought, high-stakes litigation.

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 that has been described by the Washington Post as “one of the court’s most important on consumer rights in years” and by the Federalist Society as “one of the most controversial Supreme Court decisions in many years.” He obtained a $56 million judgment for a certified class of federal judges, one of the few such classes in U.S. history. Deepak currently serves as lead counsel to merchants in constitutional challenges to swipe-fees laws brought in the wake of the $7 billion Visa swipe-fee antitrust settlement, and lead appellate counsel to 34 former NFL players challenging the proposed class-action settlement of claims that the league hid the long-term dangers of concussion.

Before starting his firm, Deepak was Senior Litigation Counsel and Senior Counsel for Enforcement Strategy at the Consumer Financial Protection Bureau during its historic founding in 2011-2012. As the first appellate lawyer hired under Elizabeth Warren’s leadership, he launched the agency’s amicus program and worked with the Solicitor General’s office on U.S. Supreme Court matters.

For seven years previously, Deepak was a litigator at Public Citizen Litigation Group, where he founded and directed the Consumer Justice Project to collaborate with advocates nationwide on high-impact class actions and appeals. Before that, he served as the Alan Morrison Supreme Court Project Fellow at Public Citizen, coordinating assistance to litigants in public interest cases before the U.S. Supreme Court. Deepak has also worked on voting rights litigation at the Civil Rights Division of the U.S. Department of Justice, church-state litigation at Americans United for Separation of Church and State, and prisoners’ rights litigation at the American Civil Liberties Union, and spent two years as a law clerk to the Honorable Lawrence K. Karlton of the U.S. District Court for the Eastern District of California. He received his law degree from Georgetown, studied Sanskrit for one year at Oxford, and received his undergraduate degree in philosophy from Fordham, where he was elected to Phi Beta Kappa and competed in numerous parliamentary debate tournaments including the World Universities Debating Championships in Manila, Philippines and Athens, Greece.


Cate Stetson is a member of the Hogan Lovells Global Board and the co-Director of our nationally acclaimed Appellate practice group. A Chambers-ranked appellate lawyer with dozens of arguments to her name, Cate has been described to the press as 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 in the U.S. Supreme Court, in most of the federal courts of appeals, and in multiple state appellate courts. She has filed dozens of petition- and merits-stage briefs in the U.S. Supreme Court and has briefed hundreds of matters on appeal. Her experience spans appeals presenting questions of administrative law and procedure, antitrust law, the Americans with Disabilities Act (ADA), the Employee Retirement Income Security Act (ERISA), the False Claims Act (FCA), class certification, civil procedure, and constitutional, contract, copyright, employment, energy, environmental, food and drug, healthcare, insurance, patent, telecommunications, and tort law.

Before joining our legal practice, 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.

REPRESENTATIVE EXPERIENCE

  • Briefed and argued a seminal civil procedure case in the U.S. Supreme Court.
  • Briefed, argued, and won multiple appeals on administrative procedure and environmental issues for multiple energy clients in the D.C., Second, and Ninth Circuits.
  • Briefed, argued, and won a federal preemption case of first impression in the U.S. Court of Appeals for the Fourth Circuit.
  • On behalf of a national industry group, briefed and argued an en banc First Amendment case in the D.C. Circuit.
  • Briefed, argued, and won in the D.C. Circuit an affirmance of a federal district court ruling granting class certification to a class of African-American federal employees who claimed their employer had discriminated against them in hiring and promotion decisions.
  • On behalf of numerous industry groups, briefed and argued two D.C. Circuit challenges to Environmental Protection Agency ethanol regulations.
  • On behalf of a major pharmaceuticals client, briefed and argued a D.C. Circuit appeal defending a judgment notwithstanding the verdict in an employment case presenting unsettled issues of law, and secured a unanimous affirmance.
  • Briefed and argued a high-profile copyright issue of first impression for a performing-rights organization in the United States Court of Appeals for the Second Circuit.
  • On behalf of several nuclear utilities, argued and won multiple precedent-setting damages appeals in the United States Court of Appeals for the Federal Circuit arising from the federal government's breach of its contract to dispose of utilities' spent nuclear fuel.
  • On behalf of a major energy company, briefed and argued a complex environmental and energy issue in the United States Court of Appeals for the Ninth Circuit.
  • Briefed and argued a significant appeal presenting both statutory and constitutional issues on behalf of an Arizona city challenging a federal land-into-trust application.
  • On behalf of a computer software and services company, handled a complex Federal Circuit patent infringement appeal involving microprocessor parallel processing architecture.
  • Argued and won, before a divided 11-judge court, a high-profile Ninth Circuit en banc case involving issues of land use and religious rights, and subsequently defeated a petition for certiorari.
  • Successfully sought discretionary review of, argued, and won an important insurance coverage issue for a national client at the highest court of appeals in New York State.
  • Handled a successful appeal in the Eleventh Circuit defending a managed care company against ERISA claims brought by a state attorney general.
  • Handled a successful appeal in the D.C Circuit involving the treatment of remedies for a pipeline's Natural Gas Act violations.
  • Successfully defended against a Supreme Court petition for certiorari brought by the United States Solicitor General in a multibillion-dollar Medicare matter.
  • Handled an appeal in the Seventh Circuit in a complex electric ratemaking matter.
  • Briefed, argued, and won a major appeal in the Maryland state courts for a national insurance company.
  • Represented an energy company in a successful D.C. Circuit challenge to an agency's decision placing onerous conditions on a proposed merger.
  • Handled a successful appeal in the D.C. Circuit on behalf of a national trade association challenging an agency's authority to issue certain historic-preservation regulations.
  • On behalf of two national business entities, argued an appeal in the Fourth Circuit Court of Appeals challenging an agency denial of a petition under the Information Quality Act as a violation of the Administrative Procedure Act.
  • Argued on behalf of a water filtration company a patent infringement appeal involving a doctrine-of-equivalents issue.
  • Handled a Second Circuit appeal on behalf of a pharmaceutical company sued by a consumer for allegedly negligently permitting counterfeit versions of its products to enter the prescription drug market.
  • Handled, on behalf of a national nonprofit association, a successful appeal in the U.S. Court of Appeals for the Ninth Circuit challenging agency regulations that failed to comport with the requirements of the National Environmental Policy Act.
  • On behalf of several national corporations and federations of business entities, filed multiple amicus briefs in the Supreme Court on matters including federal preemption, patent, antitrust, and employment law.


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.