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E. Joshua Rosenkranz

Partner

New York

Josh Rosenkranz is head of the firm’s Supreme Court & 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, 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.”

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 securities, intellectual property, antitrust, federal preemption, insurance law, corporate governance, criminal law and constitutional litigation. Among his recent clients are Credit Suisse, DIRECTV, DISH Network, Facebook, Genentech, Gilead, JPMorgan Chase, Kleiner Perkins, LinkedIn, Microsoft, Morgan Stanley, Oracle, 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. 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 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.

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 won a landmark victory in a Supreme Court case that rescued the estimated $60 billion U.S. market of copyrighted goods manufactured abroad.

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. Under his direction, the center represented parties in connection with more than 50 cases (including three at the U.S. Supreme Court). Before creating the Brennan Center, Josh founded the Office of the Appellate Defender, a public defender office specializing in criminal appeals.

Josh 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 Time, The Chicago Tribune, The Washington Monthly, The Boston Review, The National Law Journal, and The American Prospect.

  •  Supreme Court Engagements:

    • United States v. Microsoft Corporation: Lead counsel representing Microsoft in a fight 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.”
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
    • 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.
    • 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 appeal and co-counsel at trial level representing Gilead in a patent case that vacated the largest patent verdict in history, on a case involving a cure for Hepatitis C.
    • In a case that has been called the “World Series of IP cases,” Orrick scored 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, Orrick scored an $8.8 billion victory when the Federal Circuit unanimously overturned a 2016 jury verdict that had found Google made “fair use” of Oracle’s work.
    • 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, who had been ordered to pay a $1 million civil penalty. In an unprecedented enforcement action, the government tried to portray our client as the face of the subprime crisis and had secured crushing, career-ending penalties.
    • Lead counsel on behalf of Facebook, successfully defending in the Ninth Circuit a ruling finally ending a contentious litigation by competitors who claimed 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 $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 $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 $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.

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