For nearly three decades, Wiley Rein has been effectively advocating our clients' interests in federal and state courts across the country. Our bench strength is considerable—more than half of the firm's 275+ attorneys are seasoned litigators, forming a group that includes six former clerks to the Supreme Court of the United States; more than 50 former clerks to courts of appeals, district and other courts; seasoned former United States prosecutors; former general counsels of federal agencies and senior government officials.
We have successfully briefed and argued cases in the Supreme Court of the United States, every federal circuit, many district courts and in numerous state supreme courts, as well as before Congress and in the Executive Branch, and at various agencies. We have also arbitrated, and been arbitrators, in a number of disputes between sophisticated parties ranging from reinsurance arbitration to disputes involving Bilateral Investment Treaties (BITs).
The areas in which we litigate are as diverse as our practices, from advertising class-action lawsuits and bankruptcy appeals to international arbitration, white-collar defense and "high impact" pro bono cases. Each practice litigates cases in its area of expertise while a core team of attorneys engages in litigation across a broad spectrum of practice areas. Unlike other firms where general litigation practices are independent and divorced from specialty practices, Wiley Rein's litigators work in tandem with other professionals within the relevant practice group when handling a case, allowing the firm to deliver the best-tailored services to clients.
A Multidisciplinary Litigation Approach
Wiley Rein's litigation practice has a proven record of partnering experienced trial lawyers and appellate counsel with recognized subject matter experts at every stage of litigation. We always prepare for cases to reach the trial stage and are skilled at arguing on behalf of our clients in court, yet we build our litigation strategy on our ability to accurately evaluate complex matters with an eye toward positioning the case for early dismissal or, where appropriate, settlement before substantial litigation costs are incurred.
Our multidisciplinary approach allows us to look at legal problems creatively, crafting briefs and oral arguments that frame the most persuasive presentation of the client's legal and factual position. It also is in keeping with our commitment to provide clients cost-effective, efficient representation, saving them substantial time and resources and helping keep sensitive matters out of the public eye.
Large-Scale Discovery Experience
When early resolution is not possible and a litigation matter reaches the discovery phase, Wiley Rein collaborates closely with clients' in-house counsel and information technology (IT) departments to streamline a coordinated approach to paper and electronic information identification, location, collection (forensic and otherwise) and production.
We have successfully utilized the cutting-edge technology that has become critical to reviewing electronic discovery—including single-source commercial systems that utilize content analytics, remove duplicates and have rapid review, redaction and production capabilities. By way of example, we have:
- Partnered with a recognized e-discovery software leader in a $750 million litigation matter for a computer services company, collecting terabytes of data from over 500 computer hard drives and several large intranet servers and saving the client more than $1 million in attorney review time.
- Handled a large-scale investigation with a one-month deadline—focused on a client's government contract compliance—involving the collection of hundreds of thousands of emails from various locations and mediums, then completing all necessary interviews and document review of 100% of the finance and contract operations' documents within weeks.
- Laid the groundwork (in conjunction with the client's IT division) for the successful dismissal of several class-action cases by pinpointing only those servers containing databases and programs responsive to the plaintiff's request.
A Record of Success
In recent years, our attorneys have secured a record-setting $612 million settlement in a patent dispute, a series of dismissals of class-action lawsuits against major American beer and spirits manufacturers, commutation of a man's death sentence three hours before his scheduled execution, one of the highest copyright infringement verdicts in history, numerous major victories on behalf of wireless carriers and equipment manufacturers, success before the International Trade Commission (ITC) in maintaining antidumping duty orders on steel wire rod products and many other positive outcomes. Decisions obtained by Wiley Rein on behalf of our clients appear frequently on the National Law Journal's annual list of Top 100 Verdicts.
Selected Representative Experience
In courts around the country, Wiley Rein has achieved significant victories in areas of law ranging from aviation to white collar criminal defense. Below is a sampling of successes we have attained for clients demonstrative of the range of industries and areas of law in which we practice.
- Secured dismissal of antitrust litigation brought against the largest steel producer in the United States in complaint alleging that the company violated federal antitrust laws by purchasing the assets of a bankrupt steel company.
- Assisted in sorting out the complex interaction of Federal Communications Commission (FCC) regulation and antitrust enforcement, including the recent sale of 13 television stations for $940 million to four separate buyers in coordinated transactions.
- Secured a $3.4 million refund of Aviation Security Infrastructure Fees (ASIFs) from the U.S. Transportation Security Administration (TSA) on behalf of Spirit Airlines as well as a 32% reduction in the carrier's monthly ASIF payments going forward, after successfully petitioning for review of the TSA's action in the D.C. Circuit Court of Appeals.
- Argued on behalf of appellee International Air Transport Association (IATA) on appeal from the Eastern District of Pennsylvania in antitrust case, with the Third Circuit ruling in favor of IATA and affirming grant of summary judgment (Turicentro, S.A. v. American Airlines Inc.).
- Successfully pursued post-judgment enforcement and litigation before the Federal Aviation Administration (FAA) against a Chinese airline over unpaid-for aircraft parts by seeking to revoke the airline's charter to conduct U.S. flight operations, leading to 100% recovery of the $14.95 million payment for our client.
- Represent a myriad of automotive dealers and dealer groups in connection with the domestic auto industry meltdown, counseling clients in coping with the financial upheaval resulting from the General Motors and Chrysler filings.
- Convinced the U.S. Bankruptcy Court for the Southern District of New York to lift the automatic stay to allow our client to prosecute a declaratory judgment action concerning the scope of coverage under a policy issued to a New York-based broker of commodities and futures contracts (In re Refco Inc.).
- Succeeded in overturning the Puerto Rico federal district court's dismissal of client Coors Brewing Company's challenge to the Commonwealth's beer tax scheme under the dormant Commerce Clause, with the U.S. Court of Appeals for the First Circuit holding that there were no jurisdictional or other barriers to federal court review of Coors' suit and reversing the lower court on all grounds (Coors Brewing Co. v. Mendez-Torres).
- Filed an amicus curiae brief in support of the petitioner on behalf of the U.S. Chamber of Commerce, the world's largest business federation, in a 2009 case involving an Alabama "add-back" tax statute (VFJ Ventures, Inc. v. Surtees).
- Secured dismissal of all claims against client Molson Coors, as well as numerous other American manufacturers and distributors of alcoholic beverages, in seven class actions nationwide (and several subsequent appeals in the state and federal courts) in suits alleging that industry advertising was to blame for underage drinking, positioning these lawsuits for dismissal at an early stage on standing grounds.
- Secured a multi-million dollar settlement of a class action lawsuit brought against the "paratransit" service provided by the Washington Metropolitan Area Transit Authority (WMATA) to people with disabilities in a prominent pro bono case (Rights Council of Greater Wash. V. Wash. Area. Metro Transit Auth.).
- Obtained decision from the D.C. Circuit reversing and vacating the FCC's ownership cap for cable operators, which limited cable operators to serving only 30% of the nation's multi-channel video subscribers, on behalf of Comcast Corporation, with the court agreeing with the client's position that the subscriber limit was "arbitrary and capricious" and restricted Comcast's ability to "make economically efficient acquisitions."
- Secured a major victory on behalf of wireless carriers and equipment manufacturers in a set of consolidated cases involving allegations of injury caused by radio frequency emissions from wireless devices and systems (Murray v. Motorola, Inc.).
- Obtained a significant ruling from the D.C. Circuit on behalf of intervenor Iridium affirming an FCC decision to reassign certain spectrum used for mobile satellite services from Globalstar, Inc. to Iridium (Globalstar, Inc. v. FCC).
- Stopped the recording industry's expansive use of a unique ex parte subpoena process contained in the Digital Millenium Copyright Act (DMCA) on behalf of a leading Internet service provider (Verizon v. Recording Industry Association of America (RIAA)).
- Represented Internet service providers, trade associations and consumer electronic manufacturers as amici curiae in appeal involving the reach of secondary copyright liability and its application to dual-use technology (Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.).
- Led a landmark constitutional challenge to the Bipartisan Campaign Reform Act of 2002 (BCRA), in which we represented Senator McConnell, the U.S. Chamber of Commerce, Associated Builders and Contractors, National Association of Manufacturers and the California Republican Party (McConnell v. FEC).
- Won rapid dismissal of a state political party's complaint that a client's televised issue ad made false claims regarding a U.S. Senate candidate's position concerning a federal bill that would permit labor unions to force themselves on workers without a secret ballot (Brian Melendez v. Minnesotans for Employee Freedom, Employee Freedom Action Committee, King Banaian, Brian Worth, Mike Murphy, and Coalition for a Democratic Workplace).
- Challenged Federal Election Commission (FEC) enforcement action concerning valuation of charter air service (FEC v. Arlen Specter).
- Filed an amicus brief on behalf of the Self Insurance Institute of America urging the Supreme Court of the United States to overturn an appellate court ruling that the Employee Retirement Income Security Act (ERISA) only allowed suit when there was an injury to the plan as a whole, and not to a single member, with the Court favorably holding that an employee can sue his employer for alleged mismanagement of his 401(k) pension plan (LaRue v. DeWolff, Boberg & Associates, Inc.).
- Represented an employer in California state court in a five-week jury trial of a hostile environment case based on alleged racial and sexual harassment and retaliation, resulting in a mitigated judgment of less than one-quarter of the demand made by the claimant at the close of the case.
- Successfully challenged the U.S. Environmental Protection Agency (EPA) National Emission Standard for Hazardous Air Pollutants (NESHAP) for lead battery manufacturers in the U.S. Court of Appeals for the D.C. Circuit.
- Obtained dismissal on jurisdictional grounds of a challenge to EPA re-registration of azinphos methyl pesticide products, over the opposition of both EPA and plaintiffs. Currently defending that decision on appeal in the U.S. Court of Appeals for the Ninth Circuit.
- Obtained reversal in the U.S. Court of Appeals for the Fourth Circuit of a District Court’s dismissal on jurisdictional grounds of the first challenge to a National Marine Fisheries Service Endangered Species Act biological opinion regarding registration of pesticide products.
- Filed amicus curiae briefs on behalf of The Cato Institute in the landmark American Electric Power v. Connecticut “global warming”case. The Supreme Court issued a decision to our client in June 2011.
- Challenged the constitutionality of the Honest Leadership and Open Government Act (HLOGA) member disclosure provisions on First Amendment grounds (National Association of Manufacturers v. Taylor).
- Upheld First Amendment right of the Center for Individual Freedom to run television advertising discussing candidates for Louisiana Supreme Court (Center for Individual Freedom v. Carmouche).
- Handled litigation over media ownership restrictions in the Third Circuit and before the Supreme Court of the United States (Prometheus Radio Project v. FCC).
- Represented Wyeth Pharmaceuticals before the Supreme Court of the United States in prominent case involving the question of Food and Drug Administration (FDA) drug approval preemption against state tort law suits (Wyeth v. Levine).
- Challenged, on First Amendment grounds, FDA regulations limiting the dissemination of off-label information about approved drugs in landmark litigation (Washington Legal Foundation v. Friedman).
- Challenging FDA's lack of enforcement efforts regarding the unauthorized manufacturing and marketing of unapproved compounded hormone drug products.
- Won a bench trial on behalf of a national educational services franchisor in dispute with company's largest franchisee over the terms of renewal.
- Defended a nationwide franchisor in an extended state court jury trial over the valuation of one of its oldest and largest franchisees as part of a contractual purchase upon non-renewal.
- Represented The Boeing Company in overturning the Air Force's award of a $35 billion dollar contract for the next generation of aerial refueling tankers in one of the most prominent U.S. Government Accountability Office (GAO) protests in history.
- Successfully defended and settled large, high-profile litigation brought by the U.S. Department of Justice (DOJ) against our large multinational client under the civil False Claims Act for recovery of certain travel costs billed under government contracts.
- Represented association of major defense and aerospace contractors in helping to convince the U.S. Court of Appeals for the Federal Circuit to reverse an Armed Services Board of Contract Appeals (ASBCA) decision concerning the proper exchange rate for use in converting depreciation charges from a hyperinflationary foreign currency into U.S. dollars.
- Earned dismissal on behalf of an insurer in suit seeking coverage for class-action and individual mold claims in multiple apartment buildings on grounds that insured failed to demonstrate the existence of a justiciable claim against the insurer (Archstone-Smith Operating Trust v. Travelers Property Casualty Co.).
- Represented the insurer pool providing coverage for nuclear energy risks in litigation concerning coverage for environmental clean-up costs at the Nuclear Metals Superfund site in Concord, Massachusetts (Whittaker Corporation v. American Nuclear Insurers).
- Obtained summary judgment in favor of a Directors and Officers liability (D&O) insurer in a coverage dispute arising out of the multi-million dollar fraud at Refco, Inc. (Arch Insurance Company v. Agoglia).
- Served as lead U.S. counsel for Winterthur Swiss Insurance Company in an $850 million "baseball arbitration" regarding valuation of outstanding and incurred but not reported claims of two insurers divested by Winterthur.
- Obtained a landmark, unanimous award from the International Centre for Settlement of Investment Disputes (ICSID) for 13 Dutch clients against the Republic of Zimbabwe for breaches of the Netherlands Zimbabwe bilateral investment treaty in a case involving Zimbabwe's expropriation-without compensation-of farms belonging to our clients.
- Won a major victory for prominent steel industry client when the International Trade Commission (ITC) voted to maintain antidumping duty orders on steel wire rod products from Brazil, Indonesia, Mexico, Moldova, Ukraine and Trinidad & Tobago, where maintaining the orders was critical for the domestic producers.
- Defended Hormel in a Lanham Act case against charges that ConAgra's Healthy Choice® mark had been infringed (ConAgra v. Hormel).
- Defended Kohler in a leading Lanham Act trademark case where the First Circuit Court of Appeals ruled that a mark's distinctiveness for traditional trademark purposes is not sufficient to meet the "higher" and "more rigorous" standard that the mark must be famous for dilution (I.P. Lund Trading ApS v. Kohler Co.).
- Secured a $612.5 million patent infringement settlement with the maker of BlackBerry wireless email devices in one of the largest ever settlements of its kind, resolving a fiercely contested, high-profile patent case (NTP, Inc. v. Research in Motion, Ltd.).
- Secured a victory for pharmaceutical clients in their defense of a protracted patent infringement litigation brought by another pharmaceutical company concerning our clients' generic omeprazole product equivalent to the plaintiff's Prilosec® product (AstraZeneca v. Mylan Laboratories Inc. et al.).
- Convinced Virginia Governor George Allen to commute a man's death sentence three hours before his scheduled execution based upon "a substantial question involving the reliability of evidence presented at … the trial," the culmination of a nine-year process through Virginia's state and federal habeas corpus system, with three separate petitions to the Supreme Court of the United States.
- Secured victory against the operators of a years-old realty scheme to defraud poor and homeless persons in the Washington, DC metropolitan area, representing one of the scam's victims in conjunction with The Washington Legal Clinic for the Homeless.
- Represented a lawyer in a nine-day federal jury trial of a legal malpractice claim brought by a Nobel Prize-winning economist, obtaining a take nothing judgment based on a jury verdict determining that the client did not breach the applicable standard of care.
- Represented a law firm on appeal of a large malpractice judgment to the Ohio Supreme Court, which reversed and directed entry of judgment for the law firm in what is generally regarded as the most significant legal professional liability decision in Ohio in at least 10 years. ENC v. Goodman Weiss Miller, LLP.
- Won a motion to dismiss the qui tam allegations brought against our client, a military contractor alleged have committed fraud in the performance of its services contract.
- Cooperated with a government agency's investigation of a Fortune 100 company's role in the competition for two government contracts, including collecting electronic documents and emails from approximately 25-30 employees in several offices around the country, making forensic copies of hard drives of key employees and reviewing documents for liability and responsiveness.
Comcast v. Behrend: Footnote 5 and the Ghost of Carolene Products
By Bert W. Rein and John B. Wyss
April 26, 2013 | Bloomberg BNA's Class Action Litigation Report
FCPA Defendants: "May Their Sins Be Forgotten?"
By Gregory M. Williams, Richard W. Smith and Christen M. Price*
April 2013 | The Metropolitan Corporate Counsel Vol. 21, No. 4
Gunn v. Minton Will Impact Future Patent Malpractice Cases
By Richard A. Simpson and Justin D. Heminger
January 14, 2013 | Law360