I’m unaware of any Biglaw firm that has been having as good a week as Gupta Wessler, the high-powered, progressive boutique known for handling appellate, constitutional, and other complex litigation matters. In a little more than a week, the 15-lawyer firm won five precedential victories—in the Third, Fourth, Sixth, Ninth, and Eleventh Circuits—for ”military servicemembers, cancer victims, consumer borrowers, and cheated students.” Congratulations to the firm, which now has offices in San Francisco and Boston as well as its founding city of D.C., on all the big wins. (And congrats also on the aforementioned approval by the Senate Judiciary Committee of Sixth Circuit nominee Rachel Bloomekatz, a former Gupta Wessler principal.)
[P]ublic interest lawyers have become incredibly skilled at litigating arbitration cases, developing shrewd, savvy strategies to overcome the conservative majority’s arbitration mania. … And this is where good lawyering can make the difference. Jennifer Bennett, who represented Saxon, deployed her seemingly encyclopedic knowledge of interstate labor in 1920s America to shred each layer of Southwest’s reasoning. … Bennett backed up this argument with so many legal and historical sources that the Supreme Court apparently had no choice but to agree. … Corporate lawyers have gotten used to winning arbitration cases in their sleep, and just assumed that they could wield the FAA to crush every lawsuit, no matter how tenuous their legal theories might be. It turns out, though, that there is some limit to the court’s tolerance of atextual, ahistorical arguments for mandatory arbitration. Progressive attorneys have mastered the art of testing those limits. The resulting victories for labor may not topple the broader pro-arbitration regime. But they are the best that anyone can reasonably hope for at this Supreme Court.
Law Firm of the Week is often but not always a Biglaw firm; I’ve recognized boutiques in the past . . . And today I’m honoring a boutique again: Gupta Wessler PLLC, which accurately describes itself as “the nation’s premier appellate boutique for plaintiffs and public-interest clients.”
Gupta Wessler has around eight lawyers, but it had the kind of week that would make an 800-lawyer firm proud. The previously discussed, unanimous Supreme Court ruling in Ford Motor Co. v. Montana Eighth Judicial District Court was a Gupta Wessler win — and Justice Kagan’s opinion for five justices (three others concurred in the judgment) reflects several points raised by name partner Deepak Gupta in both the argument and the briefing.
That was on Thursday, but it wasn’t the firm’s first big win of the week. On Monday, the Supreme Court declined to hear a high-profile privacy case against Facebook. The case had some promising ingredients for a grant of certiorari — a cert petition by the estimable Jeffrey Fisher, a decision from the Ninth Circuit, by one of its more liberal members — but Gupta Wessler’s opposition to cert carried the day.
On Tuesday, Gupta Wessler prevailed in the Montana Supreme Court, on behalf of injured railroad workers arguing that their claims weren’t preempted by federal law. On Wednesday, the firm won the aforementioned case of Young v. Hawaii, in which the en banc Ninth Circuit held that the Second Amendment does not guarantee a right to openly carry firearms for self-defense — over a vigorous dissent by Judge Diarmuid F. O’Scannlain, who argued that the majority “reduces the right to ‘bear Arms’ to a mere inkblot.” Judge O’Scannlain has a strong track record of getting SCOTUS to reverse his colleagues, so this might not be the final chapter in Young. For now, though, it’s an impressive victory for Gupta Wessler — a small firm that scores big wins.
The plaintiff-side appellate boutique Gupta Wessler is taking its … practice to the west coast, opening a San Francisco office to complement its D.C. headquarters. Jennifer Bennett, formerly at the consumer and worker protection firm Public Justice, will head the new office, joined by associate Neil Sawhney, who recently joined the firm …. While at Public Justice, Bennett argued her first Supreme Court case, winning a unanimous victory for transportation workers resisting forced arbitration. Both Bennett and Sawhney clerked at the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, as well as other state and federal courts in the Golden State. While the firm is excited about the expansion, it doesn’t have any immediate plans to branch out further. “We’ve tried to grow very carefully and slowly” over the past few years, Gupta said. “We enjoy our small, collegial atmosphere.”
Deepak Gupta is stepping in at the appellate stage to represent a class of consumers who received robocalls from Dish Network LLC. Dish is challenging a $60 million verdict in favor of the class, arguing the 18,000-member class was so broadly defined that it included uninjured class members. The defense bar has been trying to get “no-injury” class actions before the U.S. Supreme Court for years. Bringing in Gupta could signal that the plaintiffs think this case is headed that way. Gupta made an appearance in the case Dec. 17, and filed the class’s response brief the same day. His firm, plaintiff-side appellate boutique Gupta Wessler PLLC in Washington, has represented consumers in high-profile cases at the appellate and Supreme Court level.
If doing something twice in a row makes a trend, then the [U.S. Supreme Court] launched a significant one on Monday afternoon. The court announced that Deepak Gupta of Washington’s Gupta Wessler was “invited to brief and argue” as amicus curiae “in support of the judgment below” in a Social Security case from Kentucky captioned Smith v. Berryhill. Translated, that means that Gupta will argue a position in the case that the U.S. Justice Department—representing Social Security official Nancy Berryhill—no longer embraces.
When the court is presented with a case in which both sides agree that the lower court decision is wrong, it appoints a lawyer to make the case that the ruling was right, so that both sides can be aired fully. By long tradition, the coveted invitation to argue in such a case has been bestowed mainly on justices’ former law clerks . . . Gupta is not a former Supreme Court law clerk. There’s one twist in the Gupta appointment. Gupta’s legal career has been mainly consumer- and plaintiff-oriented, but in the Smith case, he will be arguing at odds with a Social Security claimant.
The lawyer representing Leandra English in her mission to lead the Consumer Finance Protection Bureau is no stranger to taking on President Donald Trump in court. Deepak Gupta, a veteran appellate litigator and former CFPB senior attorney, has filed several high-profile cases against the president in his first year of office.
Gupta will no doubt lean on his experience arguing in appeals courts, where he’s established himself as a familiar figure. In the last Supreme Court term, Gupta’s boutique law firm Gupta Wessler was involved with three high court oral arguments.
Gupta created the firm in 2012 with the mission of “protecting the little guy against the big guy,” he told Bloomberg Law in a 2016 interview. Past clients include former professional football players, California truck drivers, and the gun control group Everytown for Gun Safety.
“There’s a new problem in every case that we do,” Gupta told Bloomberg BNA in the prior interview. “I get to learn about a completely new area, create a narrative around it. There’s an open question in the law and we get to put together a compelling argument and hopefully change law in a way, that if things work out right, actually improve some people’s lives.”
Although he has continued to work on the consumer protection and class action appellate cases where he made his name, Gupta has also become a go-to attorney for a series of lawsuits targeting Trump’s business dealings and other actions.
“He’s a very principled kind of guy,” said Alan Kaplinsky, the co-practice leader of Ballard Spahr LLP’s consumer financial services group, who has teamed with Gupta to set up multiple Practicing Law Institute events.
Kaplinsky, one of the deans of the defense bar on consumer finance issues, also called Gupta “one damn good lawyer.” * * *
Gupta gained an admirer in Andrew Pincus, the Mayer Brown LLP appellate heavyweight who argued on behalf of AT&T Mobility.“I think he’s an incredibly talented lawyer,” said Pincus, who has become a close friend of Gupta’s since they went head-to-head in Concepcion.
After a brief period of office-hopping, Gupta and his firm settled into a neat townhouse off Dupont Circle in Washington, a largely residential neighborhood punctuated with bars and shops. From that office, Gupta Wessler staked a name for itself as a premier plaintiffs-side appellate firm. The firm recently moved into an office building near the lobbying hotbed of K Street.
Gupta Wessler had three merits cases lined up for this past Supreme Court term, and it won two of them. * * *
Citizens for Responsibility and Ethics in Washington, one of the leaders in the case, is staffed with experienced ethics attorneys like Norm Eisen and Richard Painter — former ethics chiefs of the Obama and George W. Bush administrations, respectively. But the organization needed an outside lawyer to bring the [Emoluments Clause] case together.
Eisen said he and his co-counsel had approached several other attorneys about representing CREW in its case against Trump, but Gupta stood out.
“He is really one of the emerging giants of the appellate and the Supreme Court bar,” he said.
Don’t call the Washington boutique shop Gupta Wessler an “anti-Trump law firm,” said its founder, Deepak Gupta. A number of Trump-related policies fall squarely within the firm’s core mission, he said, putting the lawyers there—an expanding group—in court in major fights against the White House.
Civil justice, pro-consumer and regulatory matters are the firm’s core work, and “Trump makes all of that challenging,” Gupta said. “He is hostile to everything that’s been accomplished.”
Gupta Wessler led the recent briefing for the plaintiffs in Citizens for Responsibility and Ethics in Washington v. Trump, one of several cases that contend the Trump administration is running afoul of anti-corruption provisions of the U.S. constitution. The firm is advising the attorneys general of Maryland and D.C. in a parallel case.
This month, the firm brought on a new lawyer—Joshua Matz, of counsel and a former clerk to Justice Anthony Kennedy for the 2014-2015 term. The blog Above the Law once described Matz as “nothing short of a legal genius (even by SCOTUS clerk standards).”
Matz joined Robbins Russell Englert, Orseck, Untereiner & Sauber after his clerkship, spending a little more than a year there. He said he shares Gupta’s sense of mission in the wake of the Trump election. “It was in large part the election of President Trump and the aftermath that I felt this was a moment when it seemed to be important to be working on cases in defense of democracy,” he said.
Matz began working pro bono on challenges to Trump’s travel ban and the emoluments clause litigation. In that work, he said, he developed relationships with lawyers at Gupta Wessler, and found the firm “the right place for me.”
“The scope of new and difficult questions was extraordinary,” he said.
Matz is not the only high court clerk at Gupta Wessler. Rachel Bloomekatz clerked for Justice Stephen Breyer and left Jones Day to join the firm.
Deepak Gupta named to the Fastcase 50 –“honoring the law’s smartest, most courageous innovators, techies, visionaries, & leaders” (July 2017):
Deepak Gupta is one of the country’s top litigators, having successfully argued several major constitutional issues before the Supreme Court. As of this writing, he is lead counsel on a class action suit representing thousands of PACER users who allege the system’s fees violate the E-Government Act. The National Law Journal has praised his “calm, comfortable manner that conveys confidence” in oral argument, and his brief in Expressions Hair Design v. Schneiderman was ranked by Empirical SCOTUS as the most readable of the last Supreme Court term. Deepak has taken on several high-stakes cases, but what sets him apart is his creative causes of action – for example, he brought the PACER suit under the Little Tucker Act to avoid sovereign immunity defenses.
The Supreme Court bar is becoming more exclusive and specialized. And while that Supreme Club is predominately composed of BigLaw lawyers, some boutique firms have managed to elbow out some space for themselves too.
Back in 2015, boutique firm Gupta Wessler told me about one case it hoped to get before the high court. They succeeded, and the case, No. 15-118, Hernández v. Mesa, will be argued on Feb. 21. …
That’s just one of three cases before the court this term where Gupta Wessler took the lead. Deepak Gupta argued a consumer credit case before the justices in January, No. 15-1391, Expressions Hair Design v. Schneiderman. Matthew W.H. Wessler will argue No 16-149, Coventry Health Care of Mo., Inc. v. Nevils later this month.
Representing clients they “care about” on such a high profile stage is one reason why top lawyers stay at boutique firms, Gupta told Bloomberg BNA in September.
The public interest mission of Deepak Gupta’s law firm in Washington is reflected in its three U.S. Supreme Court arguments this term—and it’s the same mission that has drawn the small firm into the first significant suit against President Donald Trump and alleged conflicts of interest.
When he launched his firm in 2012, Gupta wanted to build a premier Supreme Court and appellate boutique for plaintiffs and public interest clients. He had left the Consumer Financial Protection Bureau, where he was the agency’s first appellate lawyer. His firm today has four lawyers who are principals, one of counsel, and a 2016-17 fellow.
That goal has not changed, Gupta said. But it has expanded. “It’s a new world and not the world we expected,” said Gupta of Gupta Wessler.
Gupta was on the legal team that on Monday filed an “emoluments clause” challenge against Trump that alleges the president’s business interests are creating “countless conflicts of interest, as well as unprecedented influence by foreign governments.” . . . “I’ve been thinking about the emoluments clause, like a lot of people, since the election,” Gupta said in an interview Monday. “It’s not a clause I focused on before Donald Trump. And really, I was fortunate enough to connect up with this group of extraordinary lawyers working on the case.”
That’s not to say the firm’s Supreme Court and other appellate cases will take a backseat.
On Jan. 10, Gupta argued one of the firm’s three high court cases this term—Expressions Hair Design v. Schneiderman, a First Amendment challenge to New York’s “no surcharge” law for credit card purchases. Gupta represents the merchants who sued over the surcharge.
In a February argument, Gupta’s firm is counsel of record for the family of Sergio Hernandez, a Mexican teenager who was shot to death by a U.S. Border Patrol agent. The case, Hernandez v. Mesa, raises questions about immunity and the reach of constitutional protections.
And in March, the firm’s third case goes before the justices—Coventry Health Care of Missouri v. Nevils. The case asks whether insurance contracts between the federal government and private companies pre-empt state laws barring insurers from bringing repayment claims against tort victims.
“My goal has never been to have the biggest firm we can have. It’s really important at a firm like ours that everyone shares our values,” he said. “You just can’t put out an ad and know that’s going to be the case.”
The firm’s model, he said, was based on a recognition that there was a business niche that the market wasn’t meeting. The Supreme Court and appellate practices at Big Law firms were meeting the needs of large corporate clients, he said, but there was a void on the plaintiff side for classes of consumers or workers.
Besides appellate work, the firm’s lawyers also work with clients and co-counsel on constitutional and regulatory challenges and consult on litigation strategy. They represent three nonprofits in a class action in Washington challenging PACER fees and are they are working with Everytown for Gun Safety on litigation and policy issues.
Since its start, the firm based in Washington’s Dupont Circle neighborhood has grown to four partners. The lawyers often take over cases that reach the appellate level but also see some cases through from the beginning. Among the practice’s rules: don’t do discovery and “don’t work with people that are not nice,” Gupta said.
“There are cases that happen to be high profile because they have a large public interest impact, but some of our stuff is decidedly wonky, unsexy legal issues,” he said. “I don’t think we look for cases that are going to be in the headlines. We look for cases where we think we’re on the right side, where if we win it has a big impact, especially cases where we think we can add some value.”
Opposing Gupta in court means you’re going to be “faced with the best possible arguments on that side,” said lawyer Andrew Pincus, who represented AT&T Mobility in a class action brought by Gupta’s clients. That case introduced the lawyers and now, despite working for opposing parties, the two are friends.
“It strikes me how much he believes in the causes of the clients he represents,” Pincus told Bloomberg BNA. “We all do as lawyers but I think he really in his heart is a champion for those people. For people who feel they have somehow been victimized by the government, by defendants, he really feels in his heart that it’s his calling to right those perceived wrongs.”
It’s “unusual but not unprecedented” for a firm as small as Gupta Wessler to take on three SCOTUS cases this term, said Adam Feldman, an active high court watcher who runs the blog Empirical SCOTUS. . . . Usually, a large firm takes over appeals court cases tried by smaller firms after they’re granted review by the Supreme Court.
“The difference with Deepak and with Gupta Wessler is that the firm is very well known as very strong in consumer rights appeals and they have a lot of Supreme Court experience,” he said. “While a small firm may traditionally give way to bigger firms at the Supreme Court level, the firm size is not as consequential as Supreme Court experience and that is exactly what Gupta Wessler has.”
Gupta Wessler has no interest in joining the trend of boutique firms getting scooped up by larger firms because it’s designed to represent clients that big firms don’t, which are primarily consumers seeking appellate litigation, Gupta said. In September, top appellate boutique firm Bancroft PLLC, founded by Viet Dinh, a former U.S. assistant attorney general, was swallowed up by powerhouse firm Kirkland & Ellis.
U.S. Supreme Court advocate and former U.S. Solicitor General Paul C. Clement and the boutique firm, Bancroft PLLC, most likely received a financial offer “they couldn’t refuse” to join Kirkland & Ellis, but “I can’t see” myself doing the same, Deepak Gupta, the founder of a top appellate boutique for plaintiffs and public-interest clients, told Bloomberg BNA.
“I enjoy what I do too much,” Gupta said. Gupta is founding principal of Gupta Wessler PLLC, an appellate boutique in Washington that represents plaintiffs and public-interest clients. … Gupta said that boutique firm culture is a “more civilized way” to practice law.
“Another reason I like to get up in the morning is that our clients aren’t just business engagements; these are clients and cases we care about,” Gupta said. Gupta’s firm doesn’t take on a case unless the attorneys believe they’re on the right side. “I don’t think we’d have the luxury to do that anywhere else,” he said.
On March 22, 2016, The American Lawyer highlighted the firm’s successful representation of federal bankruptcy judges against the U.S. government:
It’s hard to imagine a higher compliment than being hired to represent federal judges. Among the firms that got the nod: Gupta Wessler. ….
Bankruptcy judges, who are entitled by statute to a salary that’s equal to 92 percent of a district court judge’s salary … tapped Deepak Gupta, who was a top official at the Consumer Financial Protection Bureau before founding his own firm.
“It was a distinct honor and humbling responsibility for our firm to represent all of the nation’s federal bankruptcy judges in this litigation,” Gupta said in an email. “These judges are public servants–in many cases, they chose to forgo lucrative private-sector careers to go on the bench–and they deserved to be paid the salary and benefits to which they were entitled by law. … It’s one of only times in U.S. history in which there’s been a certified class action brought on behalf of federal judges.”
With so many attorneys in D.C., it’s hard to believe that any gap in legal services could exist in the Capital city.
But the proverbial ‘‘little guy’’ in the middle of a high- stakes appeal often finds he has nowhere to turn, Deepak Gupta of Gupta Wessler PLLC, Washington said.
And that’s a gap Gupta and his new partner Matt Wessler told Bloomberg BNA they hope to fill.
Other Side of ‘V.’ ‘‘When big corporations face high-stakes appeals, they have their pick of specialized Supreme Court and appellate groups at big firms,’’ Wessler, who recently left the public-interest law firm Public Justice to join Gupta’s appellate boutique, said in a July 16 e-mail.
‘‘But for plaintiffs and public-interest clients on the other side of the courtroom, comparable options often aren’t available.’’
‘‘Our aim is to fill that void, and to provide plaintiffs and public-interest clients with an option for litigating cases and issues that will have wide-ranging impact on the law and the civil justice system,’’ Wessler said.
That’s what Gupta has been doing for three years since opening his own shop, previously known as Gupta Beck PLLC.
‘‘It’s an idea I’d been kicking around since 2004,’’ Gupta said in a July 16 interview.
In the face of so many options for corporate defendants, Gupta said he wanted to provide options for those ‘‘on the other side of the ‘v.’ ’’
The national appellate boutique formerly known as Gupta Beck PLLC has announced that former Public Justice staff attorney Matthew Wessler, who has extensive experience in plaintiff-side litigation in employment and class action, among other areas, has joined founding principal Deepak Gupta as a named partner to create Gupta Wessler PLLC.
Wessler told Law360 on Wednesday that he’s been concerned for several years by the asymmetry in legal representation between plaintiffs and corporate defendants. In particular, he said, when big corporations face high-stakes appeals, they have their pick of specialized Supreme Court and appellate groups at large firms, adding that comparable options for plaintiffs and public interest clients on the other side often aren’t available. The firm became Gupta Wessler effective on July 1.
“I’ve watched Deepak build his firm into the nation’s premier appellate boutique for plaintiff- side litigation and his track record over the last few years has been remarkable,” Wessler said. “He has become the go-to appellate lawyer for many important cases and I was attracted by the opportunity to work with him to expand the firm’s impact and broaden its reach.”
Paul Barrett, Businessweek, July 13, 2014:
The first notable aspect of the Donziger appeal is that the opposing parties’ legal forces have been equalized. At the RICO trial in the fall of 2013, Chevron’s vast team from the firm Gibson, Dunn & Crutcher overwhelmed a patched-together squad of trial attorneys and activist volunteers representing Donziger and his Ecuadorian clients.
For the appeal, Donziger has hired Deepak Gupta, a rising star in the Washington (D.C.) appellate bar, and Gupta has deployed an impressive team drawn from his own boutique firm and academia. Burt Neuborne, a professor at New York University Law School and a prominent human-rights advocate, has filed a complementary brief on behalf of the Ecuadorians. Gibson Dunn will respond for Chevron, but the Los Angeles-based corporate firm’s manpower will be irrelevant in the more theoretical, less labor-intensive arena of appellate combat.
National Law Journal’s Inadmissible column, June 25, 2012:
COMMON GOOD. Boutique law firms in Washington are commonplace, but not many are focused on plaintiff-side appellate litigation and public policy. Deepak Gupta has done just that, striking out on his own to found Gupta PLLC. “It’s long struck me that there has been an advocacy imbalance when it comes to the Supreme Court and appellate litigation,” Gupta said. “It’s not just a business decision but something that will also help make the world a better place.”
Before founding the firm, Gupta was senior litigation counsel and senior counsel for enforcement strategy at the Consumer Financial Protection Bureau. The firm has been retained to argue a Fair Credit Reporting Act class action [appeal] opposite Bancroft attorney Paul Clement. The firm is also handling another class action [appeal] revolving around wage-and-hour violations in the U.S. Court of Appeals for the Second Circuit. In this matter, the firm is going up against O’Melveny & Myers’ Walter Dellinger. . . . The firm currently has four attorneys and plans to add a fifth. “We are smaller and focused on this kind of work because we believe in it,” Gupta said. — Matthew Huisman
Profile by Jamie Schuman in the Supreme Court Insider section of the National Law Journal on July 18, 2012.
Washington attorney Deepak Gupta has built his career on representing the “little guy” in cases where he says “a big institution is doing something that is hard to justify.”
Gupta previously worked at Public Citizen and the Consumer Financial Protection Bureau, and opened his own appellate and policy boutique this summer. [The petition for certiorari in] McBurney is the first court filing for the firm, which will be named Gupta Beck when its fifth attorney joins this month.
While the office will represent plaintiffs in class actions and consumers’ and workers’ rights issues, Gupta expects it to have robust constitutional-law and public-policy practices. Of counsel Brian Wolfman, who co-directs the Georgetown University Law Center’s Institute for Public Representation, and is the former director of the Public Citizen Litigation Group, brought McBurney to the firm. Students in the Georgetown clinic worked on early drafts of the brief. — Jamie Schuman
Nationally recognized attorney Deepak Gupta, who has advocated for consumers before the U.S. Supreme Court in several high-proﬁle cases, sees federal agencies as the way to protect consumers’ right to sue as a class after the high court approved contract clauses banning class actions last year. . . .