Appellate Litigation/Supreme Court Practice

• National Federation of Independent Business v. Sebelius.  The Supreme Court appointed Covington’s Robert Long to brief and argue the issue whether the Anti-Injunction Act temporarily bars challenges to the minimum coverage provision of the Patient Protection and Affordable Care Act of 2010.
• FCC v. Fox Television Stations, Inc.  Covington successfully represented the CBS and NBC Television Affiliates in this case involving the FCC’s policy on broadcast of "fleeting expletives."  The Supreme Court held that the agency’s policy violated the Due Process Clause, an argument emphasized in Covington’s brief for the television stations.
• Conkright v. Frommert.  Covington successfully represented 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.
• Watters v. Wachovia Bank, N.A.  Covington successfully represented Wachovia Bank in a National Bank Act preemption case.  In ruling for Wachovia, the Supreme Court held that the state law at issue was preempted because national bank operating subsidiaries are supervised exclusively by the federal Office of the Comptroller of the Currency.
• Robertson v. United States ex rel. Watson.  Covington successfully represented Wykenna Watson in a constitutional challenge to a District of Columbia law that allows victims of domestic abuse to pursue criminal contempt proceedings for violations of civil protective orders.  Following oral argument, the Supreme Court agreed with Covington’s suggestion that the case should be dismissed.
• Lopez v. Gonzalez.  Covington successfully represented Jose Lopez in an immigration case, in which the Supreme Court held that a conviction in state court for a drug offense that is a felony under state law but only a misdemeanor under federal law is not an “aggravated felony” for immigration purposes.

Representative Matters

Covington’s recent cases in the federal courts of appeals and state appellate courts include:

• Brady v. National Football League.  Covington successfully represented the National Football League in a class-action antitrust case in which the NFL Players Association and ten prominent players sought to enjoin the NFL’s lockout of its player-employees.   The U.S. Court of Appeals for the Eighth Circuit ruled for the National Football League, vacating the injunction entered by the District Court on the ground that the injunction violated the Norris-LaGuardia Act, which prohibits judicial interference in labor disputes.
• Amylin Pharmaceuticals, Inc. v. Eli Lilly and Company.  Covington successfully represented Eli Lilly and Company in a significant commercial dispute with a business partner.  The U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s denial of Amylin’s motion for a preliminary injunction that would have limited the medications that Lilly’s diabetes sale force could promote.
• Odyssey Marine Exploration v. Unidentified Shipwrecked Vessel.  Covington successfully represented the Kingdom of Spain in recovering artifacts from a Spanish ship that was sunk during an 1804 battle with the British Navy.  The U.S. Court of Appeals for the Eleventh Circuit held that principles of international comity required the plaintiff, a treasure hunting company, to return the artifacts to Spain.
• MySpace Inc. v. GraphOn Corporation.  Covington successfully represented MySpace in patent litigation.  The U.S. Court of Appeals for the Federal Circuit held that GraphOn’s patents, which purported to cover the idea of an online form posting content on the internet for republication to other users, were invalid.
• In re Zyprexa Products Liability Litigation.  Covington successfully represented Eli Lilly and Company in a major RICO class action involving the prescription drug, Zyprexa.  After the District Court denied Lilly’s motion for summary judgment and certified a class of tens of thousands of “third party payor” plaintiffs, the U.S. Court of Appeals for the Second Circuit reversed those decisions, holding that the case could not proceed as a class action, and that Lilly was entitled to summary judgment on plaintiffs’ claim that the price of Zyprexa was too high.
• United States v. Ferguson.  Covington successfully represented a former insurance executive who was convicted of fraud.  The U.S. Court of Appeals for the Second Circuit vacated the conviction and ordered a new trial.
• In re: Family Dollar FLSA Litigation.  Covington successfully represented Family Dollar in a significant Fair Labor Standards Act case.  The U.S. Court of Appeals for the Fourth Circuit affirmed the District Court’s decision granting summary judgment for Family Dollar, holding that the former store manager was not entitled to overtime pay under the FLSA because her primary duty was management.
• Sager v. Hoffman-La Roche, Inc.  Covington successfully represented Hoffman-La Roche in product liability litigation involving the prescription drug, Accutane.  Including this decision, in which the New Jersey Appellate Division reversed three jury verdicts against Hoffman-La Roche, Covington has prevailed in eleven appeals in the Accutane litigation and has obtained reversals of all six adverse jury verdicts that have received appellate review.

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, 2011, and 2012.
• Robert Long is recognized for appellate litigation in publications such as The Best Lawyers in America, Chambers USA, Washingtonian Magazine “Top Lawyers,” and Washington, DC Super Lawyers.
• Robert Long has been named a “Legal Champion” by the National Law Journal and an Appellate MVP by Law360.
• Robert Long is a Fellow of the American Academy of Appellate Lawyers and a former President of the Edward Coke Appellate Inn of Court.