Jonathan L. Marcus

Jonathan Marcus is of counsel in the firm’s appellate and Supreme Court litigation group and resident in the firm’s Washington, DC office.

Mr. Marcus joined Covington after nine years at the United States Department of Justice, where he argued and won five cases before the Supreme Court of the United States as an Assistant to the Solicitor General and numerous cases in the federal courts of appeals, including two en banc arguments in the U.S. Court of Appeals for the Ninth Circuit.  At Covington, Mr. Marcus has been involved in numerous cases in the Supreme Court and the federal courts of appeals.

Mr. Marcus is an adjunct faculty member at Georgetown University Law Center.

Representative Matters

• Conkright v. Frommert, 130 S.Ct. 1640 (2010): Represented the Xerox pension plan in obtaining reversal of a Second Circuit decision that had refused to give deference to the plan administrator’s reasonable interpretation of the plan, following a prior mistaken interpretation adopted in good faith.
• Mac’s Shell Service, Inc., v. Shell Oil Products Co. LLC, 130 S. Ct. 1251 (2010): Represented the American Petroleum Institute in supporting the franchisor’s challenge to a First Circuit decision recognizing a cause of action for constructive termination under the Petroleum Marketing Practices Act even where the franchisee continues to operate the franchise.  The Supreme Court ruled in favor of the franchisor, holding that such a cause of action is unavailable in those circumstances.
• Black v. United States, 130 S. Ct. 2963 (2010): Represented the National Association of Criminal Defense Lawyers in arguing that the honest-services provision of the mail fraud statute is unconstitutionally vague. Although the Supreme Court did not strike down the honest-services provision, it sharply limited its reach to schemes involving bribes or kickbacks.
• In the U.S. Court of Appeals for the Second Circuit, Mr. Marcus represents a large pharmaceutical company in an interlocutory appeal from an order certifying a class under RICO, and an in-house lawyer of a large company who was convicted of securities fraud, mail fraud, and other charges in the District of Connecticut.
• Mr. Marcus also represents clients at the trial level , including obtaining dismissal of claims under the False Claims Act for a large pharmaceutical company in the Eastern District of New York.  He currently represents several companies in False Claims Act litigation in Massachusetts and Texas and two individuals in a lawsuit against their former employer for race discrimination in violation of the federal civil rights laws.

Previous Experience

• U.S. Department of Justice, Office of the Solicitor General, Assistant to the Solicitor General (2004-2007)
• U.S. Department of Justice, Criminal Division, Appellate Section, Attorney (1998-2004)

Honors and Rankings

• Office of the Secretary of Defense Award for Excellence (2005)
• U.S. Department of Justice's John Marshall Award (2004)

Memberships and Affiliations

• National Association of Criminal Defense Lawyers, Member
• Edward Coke Appellate Inn of Court
• Georgetown University Law Center, Adjunct Professor (Solicitor General Seminar)

Publications and Speeches

• "A Favorite Prosecutorial Tool – “Honest Services Fraud” Law – Limited," The Legal Pulse (6/24/2010), Author
• "Double Jeopardy Law After Rodney King," 95 Colum. L. Rev. 1 (1995), Co-Author
• "Model Penal Code Section 2.02(7) and Willfull Blindness," 102 Yale L.J. 2231 (1993), Author