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.
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 Certification | Government’s Motion to Dismiss | Opposition to Motion to Dismiss | Coverage at National Law Journal; ABA Journal; Wall 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.
Italian Colors v. Harris (Eastern District of California): Motion for Summary Judgment | California Complaint | Opposition to Defendant’s Motion | Hearing Transcript
Rowell v. Abbott (Western District of Texas): Oral Argument | Reply Brief | Fifth Circuit Brief | Motion for Preliminary Injunction | Opposition to Motion to Dismiss | Texas Complaint
Dana’s Railroad Supply v. Bondi (Northern District of Florida/Eleventh Circuit): Eleventh Circuit Decision | Eleventh Circuit Brief | Eleventh Circuit Reply | Consumer Groups’ Amicus Brief | Major Retailers’ Amicus Brief | Summary-Judgment Motion and Opposition to AG’s Motion to Dismiss | Reply Brief | Florida Complaint