Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

Stern v. Marshall Caps Successful Supreme Court Term for Robbins Russell

June 23, 2011

On June 23, 2011, the Supreme Court decided Stern v. Marshall, which a leading  bankruptcy scholar has called the most important bankruptcy decision in 29 years. Robbins Russell partner Roy Englert presented oral argument for the winning party, helping to persuade the Court to hold unconstitutional, on separation-of-powers grounds, a federal statute that had given the bankruptcy courts expansive authority to resolve claims against creditors.

Stern v. Marshall was just one of three cases argued this Term by Robbins Russell lawyers. As a July 2011 National Law Journal article noted, only six firms nationwide presented three or more Supreme Court arguments this Term. Robbins Russell was the smallest firm to achieve that distinction; most of the firms on the list have 500 or more lawyers, whereas Robbins Russell is a litigation boutique of only 25 lawyers.

Robbins Russell participated in 14 of the 75 cases the Supreme Court decided on the merits after oral argument during its 2010-2011 Term. Robbins Russell was on the winning side of 9 of the cases, achieved a partial victory in a 10th case, and persuaded exactly half of the participating Justices in an 11th case.

The partial victory came in Fox v. Vice, a dispute over attorneys’ fees, in which Robbins Russell partner Mark Stancil presented oral argument on behalf of the estate of a former official of a municipality in Louisiana, as well as the municipality itself. The case that split the Court evenly was Costco v. Omega, a copyright dispute in which Roy Englert presented oral argument on behalf of Costco.

Other victories in which Robbins Russell participated included: 

  • AT&T Mobility v. Concepcion, in which the firm represented the  Chamber of Commerce of the United States of America as amicus curiae,  urging federal preemption of a California rule requiring class arbitration even when the parties had agreed otherwise;
  • Borough of Duryea v. Guarnieri, in which the firm and the University of Virginia Supreme Court Litigation Clinic represented a municipality that challenged a lower court’s broad construction of the Petition Clause of the First Amendment;
  • Nevada Ethic Commission v. Carrigan, in which the firm and the University of Virginia Supreme Court Litigation Clinic represented an ethics board that successfully defended its rules governing elected officials’ ethics against a First Amendment challenge;
  • Goodyear Luxembourg Tires v. Brown, in which the firm represented the Product Liability Advisory Council as amicus curiae, urging rejection of a New Jersey court’s assertion of personal jurisdiction over a foreign manufacturer; 
  • J. McIntyre Machinery v. Nicastro, in which the firm represented the Product Liability Advisory Council as amicus curiae, also urging the Court to rein in an expansive assertion of personal jurisdiction over a nonresident defendant;
  • Janus Capital Group v. First Derivative Traders, in which the firm represented the Center for Audit Quality as amicus curiae, urging the Court to continue to hold the line against allowing one party to be held liable under the securities law for the statements of another;
  • PLIVA Inc. v. Mensing, in which the firm represented generic drugmaker Apotex Inc. as amicus curiae, urging the Court to recognize that tort suits against generic drugmakers premised on the contents of their drug labels are preempted because generic drugmakers must provide the same labeling as brand-name manufacturers and are powerless to change their  labels unilaterally; and
  • Wal-Mart Stores v. Dukes, one of the most closely watched cases of the Term, in which the firm represented Intel Corporation as amicus curiae. Intel’s principal argument – that a class seeking money damages as its predominant relief could not be certified under the rule of civil procedure used in this case (which has relaxed procedural protections) – was accepted by all nine Justices, although other aspects of the case divided the Court 5-4.