E. Joshua Rosenkranz

Joshua Rosenkranz, a partner in Orrick’s New York office, heads the firm’s Supreme Court and Appellate Litigation practice.  Mr. Rosenkranz’s practice covers a wide range of subjects, including complex commercial litigation, securities, intellectual property, antitrust, federal pre-emption, product liability, insurance law, corporate governance, white-collar crime and constitutional litigation. 

Mr. Rosenkranz has broad litigation experience in state and federal courts at all levels across the country, including the Supreme Court of the United States.  A former law clerk to U.S. Supreme Court Justice William J. Brennan Jr. and then-Judge Antonin Scalia on the D.C. Circuit, Mr. Rosenkranz has personally argued more than 150 appeals in state and federal appellate courts across the nation and has served as attorney of record in some 1,500 other appeals.  In 2007, The American Lawyer listed him as one of the “Fab 50 Young Litigators” in the United States who “seem likely to lead the pack inside the courtroom.”  Chambers USA named him one of two lawyers in the top tier of appellate lawyers in New York in 2009, and called him “a mastermind” in 2009.

Among his recent clients are DIRECTV, Deloitte, DISH Network, Facebook, First Republic Bank, Merck KGaA, PG&E, QUALCOMM and Wyeth.

Clients turn to Mr. Rosenkranz to win the highest stakes appeals, including appeals in cases that threaten the very survival of a business.  He currently represents DISH Network in one of the most high-profile patent cases in the country, seeking to overturn an injunction and contempt finding that orders the satellite TV company to turn off the recording capabilities of millions of customers.  He also represents MGA Entertainment in the most high-profile copyright/trademark appeal in the country, seeking to overturn a court's life-threatening order to turn over an entire worldwide Bratz trademark portfolio to competitor Mattel. 

Mr. Rosenkranz has played a leading role in a dozen Supreme Court cases, having argued five in the past four years.  In 2005, he successfully represented Merck KGaA in a Supreme Court case that the National Law Journal described as “the most significant patent infringement case to confront the biotech and pharmaceutical industries in a generation.”  He represented 36 law schools in a high-profile Supreme Court case against the Department of Defense.  Last term, he also argued and won a case that many consider to be the most important employee benefits case of the decade.

Mr. Rosenkranz was the founding president and CEO of the Brennan Center for Justice at New York University School of Law, one of the country’s foremost public interest firms. Over the course of eight years, he was the Brennan Center’s chief strategist on litigation and public policy advocacy.  Under his direction, the center represented parties in connection with more than 50 cases (including three at the U.S. Supreme Court) and filed almost 40 amicus briefs (including 20 at the U.S. Supreme Court).  Before creating the Brennan Center, Mr. Rosenkranz founded the Office of the Appellate Defender, a public defender office specializing in criminal appeals in New York state courts.

Before joining Orrick, Mr. Rosenkranz was partner at Heller Ehrman, where he chaired that firm’s Appeals & Strategy Group. 

Mr. Rosenkranz has authored 18 op-eds or articles in major newspapers and magazines, including The New York Times, The Washington Post, The Los Angeles Times, The Chicago Tribune, The Washington Monthly, The Boston Review, The National Law Journal and The American Prospect.  He also has published numerous books, monographs, chapters and scholarly articles, which are listed below.

Supreme Court Engagements:

• Merck KGaA v. Integra LifeSciences:  As lead counsel, on behalf of Merck KGaA, persuaded the U.S. Supreme Court to grant a broad protection allowing pharmaceutical companies to perform experiments on promising drugs before a relevant patent has expired.
• MetLife v. Glenn:  As lead counsel in an employee benefits case, persuaded the Supreme Court that courts must give less deference to an insurance company’s decisions to deny benefits than to the decisions of a neutral administrator, because the insurance company labors under a conflict of interest.
• Rumsfeld v. FAIR:  Lead counsel in a Supreme Court case representing 36 law schools and an organization of 900 law professors in a suit challenging, on First Amendment grounds, the Solomon Amendment, a federal law requiring academic institutions to assist military recruiters.
• Van de Kamp v. Goldstein:  Lead counsel in a case about the scope of prosecutorial immunity.
• Travelers v. PG&E:  Lead counsel arguing, on behalf of Pacific Gas & Electric, that an unsecured creditor cannot recover attorneys fees for intervening in a bankruptcy proceeding.
• Kentucky Retirement Systems v. EEOC:  Leading role in successfully defending Kentucky against allegations of age discrimination in connection with the structure of its plan of retirement benefits for public employees, a case that threatened to invalidate thousands of plans in two dozen states.
• McConnell v. FEC:  Leading role in representing Senators John McCain and Russell Feingold and other sponsors successfully fending off 11 consolidated lawsuits challenging the McCain-Feingold campaign finance reform measure, before a three-judge district court in Washington, D.C., and then the U.S. Supreme Court.
• Legal Services Corp. v. Velazquez:  Leading role in a successful First Amendment challenge against the restrictions Congress imposed on lawyers funded by the Legal Services Corporation.
• Shrink Missouri Gov’t PAC v. Nixon:  Successfully defending Missouri’s campaign contribution limit against a First Amendment challenge.

Representative Supreme Court Amicus Briefs:

• MedImmune v. Genentech:  Represented QUALCOMM and InterDigital in a brief arguing that a patent licensee should not be permitted to sue a licensor alleging patent invalidity while retaining the benefits of the license.
• Roper v. Simmons: On behalf of the American Medical Association, the American Psychiatric Association, and numerous other medical and psychiatric associations, argued against imposing the death penalty on offenders under the age of 18.
• United States v. Patane:  Argued that the fruits of a Miranda violation must be suppressed.
• Virginia v. Moore:  Argued that an arrest cannot be reasonable under the Fourth Amendment, if it is illegal under state law.
• U.S. Bank v. Kroske:  In support of cert. petition, argued that the National Bank Act preempts state employment discrimination actions against officers.

Before entering private practice, Mr. Rosenkranz authored or supervised more than a dozen amicus briefs on issues as varied as First Amendment, political participation, voting rights, census, criminal justice and economic justice.

Representative Other Appeals:

• Lead counsel in patent appeal to the Federal Circuit, representing DISH Network in challenging an order to turn off DVR functionality for millions of customers.
• Lead counsel in Ninth Circuit appeal challenging injunction requiring the maker of Bratz dolls to abandon the line and turn over its entire trademark portfolio to Mattel.
• Ninth Circuit appeal and cert. opposition representing the five major tobacco companies in successfully fending off antitrust challenge to the Master Settlement Agreement.
• Lead counsel in multiple cases across the country challenging state taxes that discriminate against satellite TV and in favor of cable.
• Successful appeal on behalf of Visa International and Visa USA of the largest verdict ever issued under California’s unfair competition law, a restitution award with potential exposure of over US$800 million.
• Lead counsel in a Federal Circuit appeal defending an injunction against an ITC proceeding involving mobile phone technology.
• Lead counsel in a Federal Circuit appeal about the scope of patent law jurisdiction in the federal district courts.
• Lead counsel in a Federal Circuit appeal of an International Trade Commission import ban of floor boards from China.
• Sixth Circuit appeal of a preliminary injunction issued against Philip Morris USA’s nationwide incentive program under the Robinson-Patman Act.  The Sixth Circuit stayed the injunction.
• Third Circuit appeal of a preliminary injunction issued against a major software manufacturer for copyright infringement.
• Appeal to the California Supreme Court of a ruling that excess liability insurance policies do not cover liability ordered by an administrative  agency.
• Appeal to New York’s highest court of high-profile defamation case challenging allegedly corrupt practices of rabbis who have successfully defended on the ground that the Establishment Clause prohibits the suit.
• Lead counsel representing the mayor of New Paltz in connection with criminal and civil cases challenging his decision to perform same-sex marriages, yielding the first ruling by any New York court declaring the ban on same-sex marriages unconstitutional.
• Amicus brief for the Federal Circuit en banc, urging abandonment of the presumptions governing a patent infringer’s failure to consult counsel (or decision not to introduce evidence of having consulted counsel) upon learning about an infringing patent. 

Admitted in

• New York

Court Admissions

• First Circuit
• Second Circuit
• Third Circuit
• Fourth Circuit
• Fifth Circuit
• Sixth Circuit
• Seventh Circuit
• Eighth Circuit
• Ninth Circuit
• Eleventh Circuit
• Federal Circuit
• District of Columbia Circuit

Memberships

• Board of Directors, Office of the Appellate Defender
• Board of Trustees, HealthCare Chaplaincy

Multimedia

Publications

• The Common Man as Uncommon Man: Remembering Justice William J. Brennan, Jr. (J. Rosenkranz & T. Jorde, eds., Brennan Center), 2006
• Reason & Passion: Justice Brennan's Enduring Influence (Rosenkranz & Schwartz, eds., W.W. Norton), 1997
• Buckley Stops Here: Loosening the Judicial Stranglehold on Campaign Finance Reform (Twentieth Century Fund), 1998
• If Buckley Fell (J. Rosenkranz, ed., Century Foundation), 1999
• Voter Choice '96: A 50-State Report Card on the Presidential Elections (Brennan Center), 1996
• A Guide to Criminal Appeals (Rosenkranz & Gimpel, Office of the Appellate Defender), 1995
• "Clean & Constitutional," in New Directions in Campaign Finance Reform (Rogers & Cohen, eds. Beacon Press), 1999
• "Campaign Finance Reform and the Constitution: What’s Hot in the Courts?" (Extensions 13, Spring), 1999
• "Solving the Race Problem," in New Directions in Democracy (Rogers & Cohen, eds. Beacon Press), 1999
• "Campaign Finance Reform & the Constitution: The Current Legal Quandaries" (19 American Review of Politics 307), 1998
• "Faulty Assumptions in 'Faulty Assumptions': A Response to Professor Smith’s Critiques of Campaign Finance Reform," (30 U. Conn. L. Rev. 867), 1998
• "Preserving Errors in Capital Cases," in Capital Defender Manual (Warshawsky, Rosenkranz & Shelton), 1995
• A Practitioner's Guide to Harmless Error (New York State Defenders Association), 1991
• "Custom Kids and the Moral Duty to Genetically Engineer Our Children" (2 High Tech. L.J. 1), 1987
• "The Pollution Exclusion Clause Through the Looking Glass" (74 Geo. L.J. 501), 1986
• "FDA Regulation of Environmental Contaminants after Community Nutrition Inst. v. Young" (41 Food Drug Cosm. L.J. 330), 1986
• "A Ghost of Christmas Yet to Come: Standing to Sue for Future Generations" (1 J.L. & Tech. 67), 1986