Joshua Rosenkranz heads the firm’s Supreme Court and Appellate Litigation practice.
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 170 appeals in state and federal appellate courts across the nation and has served as attorney of record in some 1,500 other appeals.
The American Lawyer named Mr. Rosenkranz “Litigator of the Year” in its January 2012 edition, dubbing him “the Defibrillator” based on his streak of appellate wins for companies that “appeared to be at death’s door.” In naming him an “Appellate MVP” for 2011, Law360 notes: “Rosenkranz is heralded by his colleagues as a brilliant strategic mind with a knack for swaying judges and crafting written arguments that sing off the page.” Benchmark Litigation and Benchmark Appellate 2012 list Mr. Rosenkranz as a “Litigation Star,” quoting the CEO of a client: “I think Joshua Rosenkranz is one of the finest lawyers I’ve ever seen.” Chambers USA named him one of two lawyers in the top tier of appellate lawyers in New York in 2009. The 2011 version of Chambers USA reported, “He wins accolades for his ‘brilliant analysis and judgment.’ Clients appreciate how he ‘rethinks every case from the ground up,’ and add: ‘He can take the most complicated legal or technological issue and present it in a way that seems like common sense.’” And the 2012 version added: “‘His briefs are quite simply beautiful,’ sources report, whilst clients describe his courtroom presence as ‘both commanding and accessible at the same time.’ He has the ‘perfect combination of persuasiveness, intelligence, wit, and deference.’” Legal 500 describes him as “a Superman” and “an excellent orator, strong strategist, and overall outstanding advocate.”
Mr. Rosenkranz’s practice covers a wide range of subjects, including securities, intellectual property, antitrust, federal preemption, insurance law, corporate governance, criminal law and constitutional litigation. Among his recent clients are Apple, DIRECTV, DISH Network, Facebook, First Republic Bank, Intel, Merck KGaA, Morgan Stanley, Nintendo, PG&E and UBS.
Clients turn to Mr. Rosenkranz to win the highest stakes appeals, including appeals in cases that threaten the very survival of a business. He represented DISH Network in one of the most high-profile patent appeals in the country, successfully overturning an infringement finding that yielded US$400 million in damages and an injunction that ordered the satellite TV company to turn off the recording capabilities of millions of customers. He represented Facebook in the high-profile battle waged by the founder's Harvard classmates who have laid claim to the idea for Facebook, recently winning a ruling from the Ninth Circuit ending the lawsuit. He also represented MGA Entertainment in the most high-profile copyright/trademark appeal in the country, which successfully overturned a court's life-threatening order to turn over the entire worldwide Bratz trademark portfolio to competitor Mattel. He currently represents Apple in the Smartphone wars in an appeal about the validity of the patent on Apple's revolutionary touchscreen. He represents Oracle in its high-profile copyright appeal against Google over whether Android impermissibly copies the Java platform. He also represents Microsoft on appeal to the Second Circuit in its most important case, challenging the government’s right to force the company to turn over customer “cloud” email content held on servers located in a foreign country. The case has been described in The Washington Post as one of the “most intriguing, consequential, and complex legal cases having to do with technology now in the courts.”
Mr. Rosenkranz has played a leading role in more than a dozen Supreme Court cases, having argued eleven in the past seven 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. He also argued and won a case that many consider to be the most important employee benefits case of the decade. And in March 2013, Josh won a landmark victory in a Supreme Court case that rescued the estimated $60 billion U.S. market of copyrighted goods manufactured abroad in Kirtsaeng v. John Wiley Publishing.
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.
Supreme Court Engagements:
- Kirtsaeng v. John Wiley & Sons: Lead counsel in a landmark copyright case that rescued the estimated US$60 billion U.S. market of copyrighted goods manufactured abroad from the brink of potential disaster. The Court had split 4-4 when it previously addressed the issue. Mr. Rosenkranz won over the ninth Justice and flipped another vote, for a 6-3 win. SCOTUSBlog reported: “A common trope says that it is common for a case to be lost at oral argument but rare for one to be won. I am not so sure.... Joshua Rosenkranz managed to directly confront, and apparently defuse, the concerns of several Justices who seemed opposed to his position. This well might be the rare case of a victory at oral argument.”
- Merck KGaA v. Integra LifeSciences: As lead counsel, on behalf of Merck KGaA, persuaded the Supreme Court to reverse the Federal Circuit, 9-0, to grant a broad protection allowing pharmaceutical companies to perform experiments on promising drugs before a relevant patent had 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.
- Nevada Comm'n on Ethics v. Carrigan: Lead counsel in a landmark Supreme Court about whether the First Amendment protects a legislator's right to vote.
- Fox v. Vice: Lead counsel in persuading a unanimous Supreme Court that a court may not award attorneys’ fees against a civil rights plaintiff without showing that the fees would not have been incurred but for the plaintiff's decision to plead a frivolous federal claim.
- 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.
- Bruesewitz v. Wyeth: Helped brief the major preemption victory for Wyeth, holding that plaintiffs claiming to have been harmed by childhood vaccines cannot bring lawsuits asserting that the vaccine should have been designed more safely.
- 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: Leading role in successfully defending Missouri’s campaign contribution limit against a First Amendment challenge.
Representative Other Appeals:
- Lead counsel on behalf of Facebook, successfully defending in the Ninth Circuit a ruling finally ending a contentious litigation by competitors who claim to be the true owners of Facebook.
- Lead counsel in patent appeal to the Federal Circuit, successfully representing DISH Network in challenging an infringement finding that yielded US$400 million in damages and injunction requiring DISH to turn off DVR functionality for millions of customers.
- Lead counsel in Ninth Circuit appeal, successfully challenging an injunction requiring MGA Entertainment, the maker of Bratz dolls, to abandon the line and turn over its entire US$1 billion a year trademark portfolio to Mattel.
- Lead counsel successfully persuading the Second Circuit to dismiss a putative class action filed against UBS by shareholders seeking US$800 million in lost “merger premium” for a failed merger.
- Lead counsel on behalf of Intel in Federal Circuit appeal, successfully defending the grant of summary judgment on a major patent-infringement case on flash memory.
- Ninth Circuit appeal and cert. opposition representing the five major tobacco companies in successfully fending off an 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 more than US$800 million.
Mr. Rosenkranz has published numerous books, monographs, chapters and scholarly articles. He has also 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.
E. Joshua Rosenkranz