Appellate Litigation/Supreme Court Practice

• Xerox Corporation’s pension plan, in a significant ERISA case in which the Court held that a plan administrator’s reasonable interpretation of the plan is entitled to deference even if the administrator’s initial interpretation was erroneous (Conkright v. Frommert).
• The National Football League and its member clubs, in an antitrust challenge to the clubs’ collective licensing of intellectual property (American Needle, Inc. v. National Football League).
• Wykenna Watson, in a constitutional case in which Covington’s lawyers defended a law that allows victims of domestic abuse to pursue criminal contempt proceedings for violations of civil protective orders.  Following oral argument, the Court agreed with our suggestion that the case should be dismissed (Robertson v. Watson).
• The American Petroleum Institute, in a case concerning whether franchisees may sue franchisors under the Petroleum Marketing Practices Act for constructive termination or nonrenewal of their franchise relationships when they continue to operate their businesses (Mac’s Shell Service, Inc., et al. v. Shell Oil Products LLC).
• Graydon Earl Comstock and other individuals, in a constitutional challenge to a federal statute authorizing the indefinite detention of individuals found to be “sexually dangerous” (United States v. Comstock).
• The National Association of Consumer Bankruptcy Attorneys, in a case presenting the question of how to calculate a debtor’s “projected disposable income” during the plan period in a Chapter 13 case (Hamilton v. Lanning).
• The National Association of Criminal Defense Lawyers, in a case involving statutory and constitutional challenges to the intangible-right-of-honest-services theory of mail fraud as applied to private actors (Conrad M. Black, et al. v. United States).

• Public Broadcasters, in a challenge under the Administrative Procedure Act and Constitution to the FCC’s enforcement policy with respect to the broadcast of indecent content (FCC, et al. v. Fox Television Stations, Inc., et al., No. 07-582).
• Two major trade associations (the Pharmaceutical Research and Manufacturers of America and the Biotechnology Industry Organization), in a case concerning whether the prescription drug labeling judgments of the FDA preempt state law tort claims alleging that different labeling judgments were necessary to make the drug reasonably safe (Wyeth v. Levine, No. 06-1249).
• DuPont, in a case concerning whether ERISA requires a 401(k) plan to pay the balance in a deceased employee’s 401(k) account to the employee’s ex-wife, where the employee designated her as his beneficiary and never revoked that designation and where the divorce decree that purported to divest her of any interest in the account was not a Qualified Domestic Relations Order under ERISA (Kennedy, et al. v. Plan Administrator for DuPont Savings and Investment Plan, et al., No. 07-636).
• The Financial Services Roundtable, in a case concerning the scope of a federal regulator’s exclusive powers to regulate national banks (Cuomo v. The Clearing House Association, L.L.C., No. 08-453).
• Afton Callahan, in a Section 1983 suit raising a constitutional challenge to police officers’ warrantless entry and search of his home, where the officers assert that he consented to the entry by permitting a confidential informant to enter (Pearson, et al. v. Callahan, No. 07-751).

Representative Matters

Covington’s lawyers also represent clients in the federal courts of appeals and state appellate courts.

• Verizon, in Young v. Verizon’s Bell Atlantic Cash Balance Plan, an ERISA action in which the plaintiffs sought $2 billion in additional pension benefits, largely based on an innocent drafting error.  Although no court had previously permitted reformation of such an error in a pension plan governed by ERISA, Covington persuaded both the district court and the Seventh Circuit to do so.
• Hoffmann-La Roche Inc., in Kendall v. Roche, before the New Jersey Appellate Division in obtaining reversal of a $10.5 million verdict.  This victory brings Covington’s appellate record in matters involving the company’s Accutane product to 10-0, including a victory in the Tenth Circuit, three in the Eleventh Circuit, one in the Florida District Court of Appeal, one in the New Jersey Supreme Court, and four in the New Jersey Appellate Division.
• Wells Fargo Bank, N.A., in City of Cleveland v. Ameriquest Mortgage Securities et al., in which the Sixth Circuit affirmed the dismissal of a suit brought by the City of Cleveland challenging the bank’s securitizations of sub-prime mortgages under Ohio law.
• Eleven oil companies, in a breach-of-contract case against the United States in the U.S. Court of Appeals for the Federal Circuit, following our representation of the clients in the Court of Federal Claims, and obtaining affirmance of an award of over $1 billion to the oil companies in restitution for the government’s breach of nearly three dozen oil and gas leases off the coast of California (Amber Resources Co., et al. v. United States).
• United Technologies Corp., in an ERISA class action in the U.S. Court of Appeals for the Second Circuit, which affirmed summary judgment for United Technologies Corp., rejecting claims seeking more than $240 million in damages.
• The IBM Pension Plan, in an ERISA case in the U.S. Court of Appeals for the Seventh Circuit holding that cash balance pension plans do not violate ERISA's age discrimination provisions.  The court of appeals’ ruling saved IBM’s pension plan a potential $1.4 billion (Cooper v. IBM Personal Pension Plan).

Accolades

• Covington is recognized for excellence in appellate and Supreme Court litigation in Chambers USA and the Legal 500.
• Covington was named to The National Law Journal's "Appellate Hot List" in 2008, 2009, and 2011.
• Robert Long is recognized for Appellate Law in The Best Lawyers in America.  He is also recognized in Chambers USA: America’s Best Lawyers for Business, Euromoney’s Expert Guide to the World’s Leading Lawyers, Legal 500, Washingtonian Magazine’s “Top Lawyers” and Washington, DC Super Lawyers.
• Robert Long is a Fellow of the American Academy of Appellate Lawyers and a former President of the Edward Coke Appellate Inn of Court.