McDermott’s Supreme Court & Appellate Practice—“One of the Firms That Won Big at the Supreme Court”—Prevails; Rakes in Two Significant Wins Last Term

Overview


Led by Supreme Court & Appellate Practice co-chairs Paul Hughes and Michael Kimberly, McDermott Will & Emery litigators won two Supreme Court cases this Term involving complex issues relating to administrative law, judicial review and immigration. Legal publication Law360 recognized the team’s victories in its list of “Firms That Won Big at the Supreme Court.” McDermott catapulted into the top rankings for firms handling cases before the Supreme Court last Term and is one of only four law firms that delivered four or more oral arguments last Term.

In a 7-2 decision, the Supreme Court handed McDermott a sweeping victory in GuerreroLasprilla v. Barr, a case addressing judicial review over administrative agency actions in the immigration context. The decision held that courts may review not just purely legal questions, but also the application of law to undisputed facts. This consequential decision will be cited across administrative law for those seeking expansive review of agency actions.

Nassrallah v. Barr was another 7-2 Supreme Court win for McDermott this Term, again addressing the intersection of administrative law, judicial review and the United Nations Convention against Torture. Crucial to victory was McDermott’s advancement of a statutory interpretation argument that had been overlooked by all 10 courts of appeals to have previously addressed the issue. As a direct result of the innovation brought to arguments by this team, Nasrallah now establishes important new protections for those who may be subject to torture or extrajudicial killing following deportation.

McDermott also handled Lucky Brand Dungarees v. Marcel Fashions, an important trademark case presenting the question whether the failure to raise a defense in a prior case can limit a defendant’s right to raise that defense in later cases. Although the Supreme Court ruled against McDermott’s client, Marcel Fashions Group, on case-specific grounds, the Court adopted the substance of McDermott’s legal arguments, helping advance the doctrine in a direction favorable for our clients.

“Paul and Michael’s leadership has led the team to countless victories across both the Supreme Court and lower federal courts,” David Rosenbloom, global head of McDermott’s Litigation Practice Group, said. “When the Supreme Court turns its focus on the most sensitive and critical legal issues facing the nation, litigants and stakeholders turn to us; and when businesses and trade associations look to challenge federal regulations or prosecute an appeal, they choose us for the highest quality briefing and oral advocacy.”

Paul and Michael have argued 14 cases before the Supreme Court over their careers, including eight cases in the last two Terms alone. They are set to argue a case related to immigration next Term. In addition, they have presented more than 50 appellate arguments in all 13 federal courts of appeals, as well as state appellate courts throughout the country.

Michael and Paul’s constitutional litigation experience and their robust body of work under the Administrative Procedure Act (APA) has amplified McDermott’s other practices in the trial courts. In conjunction with McDermott’s leading healthcare practice, the appellate group’s practice has included APA challenges in the Medicare Advantage context and lead roles in several successful Medicare Part D and Employee Retirement Income Security Act (ERISA) preemption matters, including Rutledge v. Pharmaceutical Care Management Association, currently pending in the Supreme Court.

Paul and Michael’s APA work has also included a number of notable wins in the immigration space. Much of this work has been focused on protecting American business’s access to an internationally based high-skilled labor force, which is critical to American innovation. In Guilford College v. McAleenan, McDermott obtained a nationwide injunction on behalf of a consortium of leading colleges and universities, blocking an immigration policy that would have banned thousands of international students from entering the United States.

McDermott also recently secured a victory for a class of noncitizens before the US Court of Appeals for the Fourth Circuit in Guzman Chavez v. Hott. Paul will argue this case on the merits before Supreme Court this winter. Recently, the US Chamber of Commerce and the National Association of Manufacturers tapped McDermott to challenge the presidential proclamation that bars entry of hundreds of thousands of skilled workers in the third and fourth quarters of 2020; that litigation is ongoing, with Paul to argue the preliminary injunction motion on September 11, 2020.

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