Constitutional & Complex Litigation

In a number of carefully selected matters, we work with clients and co-counsel to design and prosecute constitutional and regulatory challenges and other complex litigation from the ground up–with a special focus on the First Amendment, litigation involving federal agencies, and class actions. We also consult on litigation strategy and are occasionally retained to argue critical, high-stakes motions that present unsettled legal issues.

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Class Action Challenging Fees for Federal Court Records (PACER)

National Veterans Legal Services Program, et al. v. United States (U.S. District Court for the District of Columbia) – We represent three national nonprofits—the National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice—in a class-action lawsuit concerning PACER fees: the $.10-per-page charges that individuals must pay to access federal court records. This action challenges the legality of those fees for one reason: the fees far exceed the cost of providing the records. Although the judiciary is authorized by Congress to charge fees “only to the extent necessary” to recoup costs, PACER fees have generated huge revenues—with important implications for freedom of information and access to justice. In January 2017, the court granted our motion to certify a nationwide class of PACER users. Complaint | Class Certification Opinion | Motion to Dismiss Opinion  | Class Certification Motion | Government’s Opposition to Class Certification | Reply in Support of Class CertificationGovernment’s Motion to Dismiss Opposition to Motion to Dismiss | Coverage at National Law JournalABA JournalWall Street Journal; Techdirt; Ars Technica; Courthouse News; Bloomberg BNA; AFJ press release.

First Amendment and Antitrust Preemption Challenges to No-Surcharge Laws

In the wake of the $7 billion Visa swipe-fee antitrust settlement — which lifted credit-card network contractual no-surcharge rules — our firm devised and prosecuted these groundbreaking constitutional challenges to state laws forbidding merchants from imposing a “surcharge” on any customer who pays with a credit card. Because these state laws forbid “surcharges” for credit but permit mathematically equivalent “discounts” for cash, we argue that the laws violate the First Amendment, are unconstitutionally vague, and are preempted by federal antitrust law. Deepak Gupta is lead counsel for the plaintiffs.  More About These Matters
Expressions Hair Design, et al. v. New York (Southern District of New York/Second Circuit)We obtained a permanent injunction from U.S. District Judge Jed Rakoff against the enforcement of New York’s “no-surcharge” law. While defending that victory in the Second Circuit, we worked with a team of co-counsel to bring additional challenges in other states. Second Circuit Brief | Motion for a Preliminary Injunction | Reply | District Court Decision | More About This Matter
Following our victory over the New York no-surcharge law, we filed simultaneous First Amendment challenges to similar laws in Florida, Texas and California on March 5, 2014.
On May 12, 2016, we filed a petition for a writ of certiorari in Expressions, seeking review of the Second Circuit’s decision upholding New York’s credit-card surcharge law. Consumer groupsretailers, the Cato Institute, and scholars of the First Amendment and behavioral economics have filed amicus briefs in support of the petition. We prevailed in the U.S. Supreme Court in a decision issued on March 29, 2017.

Emoluments Clause Litigation

Citizens for Responsibility and Ethics in Washington v. Trump (U.S. District Court for the Southern District of New York) – We are working with a team of top ethics experts and legal scholars to challenge the constitutionality of the countless conflicts of interest and unprecedented influence by foreign governments created by President Donald Trump’s worldwide business holdings. 
​Our clients ​in this case—the government watchdog group Citizens for Responsibility and Ethics in Washington, a hotel owner, a hotel-event booker, and an association of hundreds of restaurants—challenge President Trump’s violations of the Constitution’s foreign and domestic emoluments clauses. (We are also advising the Attorney General for the District of Columbia and the Attorney General of Maryland in parallel litigation filed in the U.S. District Court for the District of Maryland.)
The Foreign Emoluments Clause prohibits President Trump from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress, while the Domestic Emoluments Clause provides that the President’s “Compensation” shall not be increased or decreased, and that he may not receive any “other emolument from the United States, or any of them,” during his term of office. The plaintiffs allege that the President is violating these clauses in a number of ways, including through leases held by foreign governments at New York’s Trump Tower, patronage by foreign and domestic governments at the Trump International Hotel in Washington, D.C., and other business dealings in foreign countries.
The legal team on the case includes ​Deepak Gupta and Jon Taylor; ​CREW’s board chair and vice-chair Norman Eisen and Richard Painter, the top ethics lawyers for the last two presidents; ​c​onstitutional law scholars La​rry​ Tribe and Zephyr Teachout; and attorneys from Cohen Milstein Sellers & Toll. Second Amended Complaint | Motion to Dismiss

Recovering Illegal Tax-Preparer Fees from the IRS

Steele v. United States (U.S. District Court for the District of Columbia) – In 2010, the IRS introduced a novel regulatory scheme for those who prepare tax returns, and began charging preparers a $64.25 fee to obtain a preparer ID number. Although the D.C. Circuit held in 2014 that the IRS does not have the authority to regulate tax preparers, the IRS continues to charge these fees. In this case, we represent a class of tax-return preparers challenging the legality of these IRS fees. We represent the class along with co-counsel from Motley Rice. Amended Complaint | Class-Certification Motion | Class Certification Opinion | Motion for Reconsideration | Opinion Granting Motion for Reconsideration | Motion for Summary Judgment | Summary Judgment Opinion

Class Action on Behalf of Federal Bankruptcy Judges

Houser v. United States (U.S. Court of Federal Claims)Our firm serves as sole counsel to a certified class of federal judges–one of the few such cases in U.S. history. We were retained by the National Conference of Bankruptcy Judges to devise and prosecute litigation against the United States on behalf of all current federal bankruptcy judges, as well as former judges and their surviving spouses, estates, and beneficiaries.
We argued that because the United States violated the U.S. Constitution’s Judicial Compensation Clause by failing to pay district judges their full compensation, and because the government calculated bankruptcy judges’ salaries based on those unlawfully low salaries, the government failed to pay bankruptcy judges their lawful compensation. Deepak Gupta is lead counsel for the plaintiffs.
We prevailed at summary judgment, obtained a final judgment entitling our clients to over $56 million in back pay, and are administering a class claims process in cooperation with the U.S. Department of Justice. Summary Judgment Brief | Complaint

Class Actions Against Debt Collectors that Rent Out District-Attorney Letterhead

Cavnar v. Bounceback (Eastern District of Washington) – On behalf of three Washington State consumers, and along with co-counsel at Terrell Marshall Daudt & Willie of Seattle, we have filed a class action lawsuit against a Bounceback, Inc., a for-profit debt collection company based in Missouri. Bounceback’s operations are much like those of any other high-volume debt collector: It solicits its business from large national retailers and other merchants, receives electronic information about unpaid checks directly from those merchants, and sends out standardized collection notices to consumers. But there is one crucial difference: Under Bounceback’s so-called “Check Enforcement Program,” county prosecutors rent out the prosecutor’s seal and letterhead to Bounceback in exchange for a cut of the collection fees, thereby cloaking ordinary civil debt collection under a sham “criminal diversion” program. Complaint | More About This Matter
Breazeale v. Victim Services, Inc. (Northern District of California) – On behalf of three California consumers, and along with co-counsel at Terrell Marshall Daudt & Willie of Seattle, we have filed a class action lawsuit against Victim Services, Inc., also known as CorrectiveSolutions and National Corrective Group, Inc.  County prosecutors rent out the prosecutor’s seal and letterhead to Victim Services in exchange for a cut of the collection fees, thereby cloaking ordinary civil debt collection under a sham “criminal diversion” program. Complaint | Los Angeles Times | Opposition to Motion to Compel Arbitration | Ninth Circuit Answering Brief

First Amendment Defense of Trademark Suit Against Consumer-Review Website

First Premier Bank v. Evolution Finance (U.S. District Court for South Dakota) –  We mounted a First Amendment defense on behalf of CardHub, a website that allows consumers to learn about and compare credit cards, and its parent company Evolution Finance. First Premier, a South Dakota credit-card company, sought to silence constitutionally protected information and commentary about its controversial products at CardHub. First Premier is infamous for subprime credit cards with low credit limits, high annual interest rates (as high as 79%), and high up-front fees—as high as $170 in fees for $250 of credit. One First Premier card recently received the dubious distinction of “America’s worst credit card” from Consumer Reports. In an effort to stop CardHub from giving consumers accurate information about these cards, First Premier invoked federal trademark law, complaining about the fact that its name appears in information and reviews displayed at CardHub. But First Premier and CardHub aren’t competitors and CardHub doesn’t even sell credit cards. Two days after the court denied First Premier’s preliminary-injunction motion, the bank dropped the lawsuit.  Motion to Dismiss | Reply | CBS News | Wall Street Journal

First Amendment Challenges to “Ag Gag” Laws

Several states have enacted “Ag Gag” laws, aimed at stifling the speech of journalists, investigators, and animal welfare advocates who seek to perform undercover investigation or recording at agricultural facilities. Supporting law professor Justin Marceau of the University of Denver and a team of advocacy groups, we filed a brief on behalf of constitutional scholar Erwin Chemerinsky to address to two questions relating to the constitutional challenge to Idaho’s Ag Gag Law: What is the status (and applicable level of scrutiny) under the First Amendment of misrepresentations used to facilitate investigations? And what is the relationship between the speech and equal-protection principles at stake?  Brief of Erwin Chemerinsky

First Amendment Challenges to Lawyer Advertising Restrictions

Searcy v. The Florida Bar (Northern District of Florida)This lawsuit successfully challenged the constitutionality of Florida’s rules restricting lawyers’ use of websites, blogs and social media–including LinkedIn, Facebook, and Twitter. Complaint