Wall-Street.com – Supreme Court victory


An entrenched circuit split had developed on an issue of statutory interpretation presented at the outset of virtually every copyright case. Section 411(a) of the Copyright Act provides that no infringement suit may be filed unless registration “has been made.” Must the Copyright Office act on an application for registration before suit may be filed, or is filing the application enough?

Multiple circuits, in line with the view of leading treatise authors (Goldstein; Nimmer), had held that simply filing the application is enough. We were retained after a leading Supreme Court expert filed a petition for review advancing this so-called “application” approach.


Because the petition appeared virtually certain to be granted, our petition-stage goal was to stake out a strong merits position: that the only permissible reading of the statutory language of the Copyright Act is that the Copyright Office must act before suit is filed. When the Court called for the views of the Solicitor General, the government fully endorsed the view articulated in our brief. The Court granted the petition for review.

At the merits stage, with the support of the government and multiple amici, we explained why the compelling policy arguments advanced by the petitioner should not overcome the plain meaning of the statutory text written by Congress. The case was argued by Peter K. Stris in January 2019.


In an opinion written by Justice Ginsburg (who, despite not being able to attend the argument herself, cited a portion of Mr. Stris’ argument from the transcript for a key point), the Supreme Court ruled 9-0 in our client’s favor. The decision vindicates not only the original text of the Copyright Act, but also Congress’ desire to promote early and extensive copyright registration.

Merrill Lynch — Securities Victory

The Challenge

Protecting the authority of state courts to enforce their own laws governing market misconduct.

The Engagement

In a case of extraordinary importance to state authorities and the investing public, we were retained to represent before the United States Supreme Court a group of investors who lost over $50 million when the stock of a company called Escala declined by more than $800 million. The complaint accused several major financial institutions of engaging in improper short-selling practices, and sought relief in New Jersey state court for violations of New Jersey law. Led by Merrill Lynch, the financial institutions argued that the federal securities laws required the case to be brought exclusively in federal court. We argued that longstanding principles of jurisdiction entitled state courts to hear disputes concerning their own laws.

The Result

The Court issued an 8-0 decision in our clients’ favor, holding that the lawsuit could proceed in New Jersey state court. Our victory was described by the press as “the most significant securities decision of the term.”

Montanile — Supreme Court Victory

The Challenge

Persuading the Supreme Court to resolve an important circuit split on the reach of equitable remedies under ERISA.

The Engagement

On numerous occasions (and frequently with our attorneys appearing), the Supreme Court has grappled with the proper scope of the remedies provided under ERISA, the federal statute that covers most Americans’ health insurance. The most recent case on the remedies question involved an unlucky defendant named Robert Montanile, who was hit by a drunk driver and suffered severe injuries. While Mr. Montanile settled with the driver who injured him, those monies were insufficient to cover his medical bills and other necessary expenses. Nonetheless, Mr. Montanile’s health plan sued him, demanding that he personally reimburse it for the six figures in medical bills it had paid. The circuit courts of appeal were split on whether ERISA allowed a plan to obtain reimbursement in those and similar circumstances. We were retained by the defendant’s trial counsel to handle the case before the Eleventh Circuit, and then to obtain certiorari and argue the matter before the Supreme Court. After obtaining certiorari, we argued that neither ERISA nor the practices of historical equity permitted a plaintiff to reach the general assets of a subrogor. The United States Government intervened on our side.

The Result

The Supreme Court issued an 8-1 decision in favor of Mr. Montanile. The constraints it articulated on the recovery of monies from needy beneficiaries will help to protect the limited resources of millions of sick, disabled, and retired people.

Arena Pharmaceuticals — Ninth Circuit

The Challenge

Reversing a district court decision that excused a pharmaceutical company and its executives from fraud that cost investors over $100 million.

The Engagement

Investors in Arena Pharmaceuticals lost more than $100 million when they were misled about the prospects for regulatory approval of a new weight loss drug. Defendants sought dismissal on the theory that their misleading conduct was not actionable because they legitimately disagreed with the Food & Drug Administration about the relevant carcinogenic science, and because much later the FDA approved the drug. After the district court dismissed the case, leading plaintiffs’ firm Kaplan Fox & Kilsheimer LLP retained Stris & Maher to brief and argue for reversal. Our position is that misleading the market about the existence of a significant scientific disagreement with the FDA is actionable under well-established principles. This appeal would clarify the pleading standard in the Ninth Circuit for a wide range of securities fraud cases.


The Ninth Circuit ruled 3-0 in our favor, reversing the district court’s decision and remanding the case for further proceedings. In April 2018, the district court approved a settlement agreement that would pay $24 million in cash and stock to the proposed class.

Representing Vermont — Healthcare Preemption

The Challenge

Securing Supreme Court review of a federal court decision limiting Vermont’s ability to collect information about the cost of health care.

The Engagement

Like nearly 20 other states, Vermont sought to create a healthcare database with information about the types and costs of medical services provided to state residents. To advance that objective, Vermont required all insurers to report certain information to state regulators for its database. In 2011, the Second Circuit held that Vermont’s healthcare database program was preempted by the Employee Retirement Income Security Act of 1974 (ERISA). Stris & Maher was retained by Vermont to assist in preparing a petition seeking review by the U.S. Supreme Court.

The Result

Over the objection of the plaintiff and the federal government, and despite the fact that the Court grants fewer than 70 of 8000 such petitions filed annually, our petition was granted in June 2015. It was the first ERISA pre-emption case heard by the Court in nearly 15 years. On the merits, we continued to serve as co-counsel alongside lead counsel, Bridget Asay, who at the time was the Solicitor General of Vermont. (Ms. Asay later joined Stris & Maher.) The Court ultimately held that Vermont law was preempted.