E. Joshua Rosenkranz

Partner

New York

Josh Rosenkranz is head of the firm’s Supreme Court & Appellate 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, Josh has personally argued more than 200 appeals in state and federal appellate courts across the nation, including 20 before the U.S. Supreme Court.

Josh is the only lawyer ever named American Lawyer's “Litigator of the Year” twice. In 2012, the magazine dubbed him “the Defibrillator” based on his streak of appellate wins for companies that “appeared to be at death’s door,” and in 2017 it declared, he “still deserves the moniker we once gave him.”

In 2014, The Financial Times named Josh one of the 10 most innovative lawyers in the North American legal sector for his work “demystify[ing] the technical issues” and securing a victory in the blockbuster Federal Circuit appeal, Oracle v. Google. Chambers USA has 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.’” Another edition of Chambers USA added: “‘His briefs are quite simply beautiful,’” and “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.’”

Josh's practice covers a wide range of subjects, including intellectual property, financial services, securities, privacy, antitrust, federal preemption, insurance law, corporate governance, criminal law, and constitutional litigation. Among his recent clients are Cisco, Credit Suisse, Cox Communications, DISH Network, Genentech, Gilead, Johnson & Johnson, JPMorgan Chase, Microsoft, Mozilla, Oracle, Sonos, and Royal Bank of Scotland.

Clients turn to Josh to win the highest stakes appeals, including appeals in cases that threaten the very survival of a business. For example:

  • He represented Microsoft in an international cause célèbre in the U.S. Supreme Court challenging the U.S. Government’s claim that it can serve warrants for emails stored overseas.
  • He represented DISH Network in one of the most high-profile patent appeals in the country, successfully overturning an injunction that threatened the company's life.
  • He has been lead counsel in multiple cases either defending or challenging verdicts over $1 billion.
  • He represented Facebook in the high-profile battle waged by the founder's Harvard classmates, the Winklevoss twins, who laid claim to the idea for Facebook, winning a ruling from the Ninth Circuit to end the lawsuit.
  • He won a landmark victory in a Supreme Court case that rescued the estimated $60 billion U.S. market of copyrighted goods manufactured abroad.
  • He represented 36 law schools in a high-profile Supreme Court case against the Department of Defense.

Josh 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. Before that, Josh founded the Office of the Appellate Defender, a public defender office specializing in criminal appeals.

  • Highest-Stakes Supreme Court Engagements:
    • United States v. Microsoft Corporation: Lead counsel representing Microsoft in an international cause célèbre fighting to prevent the U.S. government from unilaterally searching private emails stored in foreign countries. After a win in the Second Circuit, The Washington Post described the case as one of the “most intriguing, consequential, and complex legal cases having to do with technology now in the courts.” Microsoft’s President described the Government’s position as “an existential threat to the U.S. tech sector.”
    • Kirtsaeng v. John Wiley & Sons: Lead counsel in a landmark copyright case that rescued the estimated $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. Josh 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.” Two years later, Josh argued a follow-on case before the Supreme Court, this time to establish the standard for prevailing parties to obtain attorneys’ fees under the Copyright Act.
    • 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. The National Law Journal described the case as “the most significant patent infringement case to confront the biotech and pharmaceutical industries in a generation.”
    • Google v. Oracle: In a case that has been called the “World Series of IP cases,” was lead counsel scoring two stunning appellate victories for client Oracle against Google. In 2014, the Federal Circuit overturned a ruling that the thousands of lines of Oracle software that Google copied into its Android operating system had no copyright protection. In 2018, he scored another victory when the Federal Circuit unanimously overturned a jury verdict that had found Google made “fair use” of Oracle’s work. By the last estimate, the case was worth $9 billion. Josh defended those rulings before the Supreme Court, which overturned the victories.
    • Lynch v. Dimaya: Lead counsel in a 5-4 victory that struck a federal law that was used for decades as the basis to deport thousands of immigrants in violation of their due process rights.
    • 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.
    • 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.
    Representative Other Appeals:
    • Lead counsel on appeal to the Federal Circuit and co-counsel at trial level successfully representing Gilead in a patent case that vacated the largest patent verdict in history ($2.54 billion), on a case involving a cure for Hepatitis C, and a different appeal to the Federal Circuit wiping out a $1.2 billion patent infringement verdict involving CAR-T therapy.
    • Lead counsel on behalf of Facebook, successfully defending in the Ninth Circuit a ruling finally ending a contentious litigation by competitors (the Winklevoss twins) who claimed to be the true owners of Facebook.
    • Lead counsel in a patent appeal to the Federal Circuit representing DISH Network, both before the panel and en banc, in successfully vacating an injunction that could have put DISH out of business by ordering DISH to turn off DVR functionality for millions of customers.
    • Lead counsel on behalf of Carnegie Mellon University in a Federal Circuit appeal defending its $1.5 billion jury verdict, then one of the largest in history, against Marvell Technologies, for infringement of a patent covering disc storage technology.
    • Lead counsel in persuading the Second Circuit to overturn a liability finding against a former Countrywide executive, the only individual targeted in connection with the “Hustle” mortgage program.
    • Lead counsel representing Johnson & Johnson in a series of appeals of jury verdicts finding the company liable on the theory that baby powder causes cancer, including a New Jersey appeal wiping out a $120 million verdict.
    • Lead counsel on behalf of Sonos in cross-appeals to the Federal Circuit of an ITC proceeding accusing Google of infringing pathbreaking patents on home audio technology.
    • Lead counsel in a life-saving win for MGA Entertainment in a Ninth Circuit appeal successfully challenging an injunction requiring MGA Entertainment, the maker of Bratz dolls, to abandon the line and turn over its entire $1 billion a year trademark portfolio to Mattel.
    • Lead counsel representing Cox Communications in appealing to the Fourth Circuit the largest copyright verdict in history ($1 billion), a judgment that threatens to fundamentally change the rules governing liability for all internet service providers and internet companies.
    • Represents Pegasystems in challenging a $2 billion trade secret judgment in Virginia state court.
    • Lead counsel successfully persuading the Second Circuit to dismiss a putative class action filed against UBS by shareholders seeking $800 million in lost “merger premium” for a failed merger.
    Other Supreme Court Engagements:
    • Unicolors v. H&M: Lead counsel overturning a Ninth Circuit ruling that threatened to change the landscape of copyright litigation by jeopardizing innumerable copyright registrations.
    • United States v. June: Lead counsel in a 5-4 victory securing a critical ruling that makes it easier for victims of wrongful government conduct to seek accountability.
    • County of Los Angeles v. Mendez: Lead counsel in an excessive force case, persuading the Supreme Court to unanimously reject the “provocation rule,” which had allowed courts to hold an officer personally liable even when his use of force was reasonable.
    • Lightfoot v. Cendant Mortgage Corp.: As lead counsel, persuaded the Court to rule unanimously that Fannie Mae’s charter does not automatically confer federal jurisdiction whenever Fannie is a party.
    • Los Angeles v. Patel: Lead counsel in a high-profile case defending the constitutionality of an ordinance—aimed at deterring prostitution, drugs, and other crime at cheap motels—requiring hotel operators to keep a guest register and make it available to the police.
    • 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.
    • Sheriff v. Gillie: Lead counsel in a case involving interpretation of the Fair Debt Collections Practices Act and the rules governing how to interpret federal statutes that are alleged to infringe on state sovereignty.
    • Nevada Comm'n on Ethics v. Carrigan: Lead counsel in a landmark Supreme Court case 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.
    • 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.