Jonathan Massey

Publications

“March Sanity: Can Courts Finesse a Legal Remedy to the NCAA’s Fantasy of Amateurism?” The Recorder (Mar. 29, 2019) (with Paul Berks)

“The Two That Got Away: First American Financial Corp. v. Edwards and Kiobel v. Royal Dutch Petroleum Co.,” 6 Charleston L Rev. 63 (2012)

“Wrong Ideas About Wrongful Death Statutes,” 33 Trial 24 (Jan. 1997)

“Preemption of Medical Device Tort Claims: Recent Developments,” 31 Trial 26 (Nov. 1995)

“The Florida Tobacco Liability Law: Fairy Tale Objections to a Reasonable Solution to Florida’s Medicaid Crisis,” 46 Fla. L. Rev. 591 (1995)

Education

Work Highlights

-He represented the Official Committee of Talc Claimants in successfully defeating Johnson & Johnson’s “Texas Two-Step” bankruptcy scheme to deprive talcum-product consumers of their jury trial rights.

-In Bush v. Gore, 531 U.S. 98 (2000); Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000), represented Vice President Al Gore in the 2000 Florida election litigation.

-He represented Land of Lincoln Insurance Company in the U.S. Supreme Court and helped secure an 8-1 victory for health insurers seeking $12 billion owed to them under the Affordable Care Act. In Land of Lincoln’s case (No. 18-1038), the government’s failure to pay approximately $127 million drove the company into insolvency and resulted in the loss of health insurance for nearly 50,000 insureds in Illinois.

-In Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), he successfully briefed and argued a Foreign Sovereign Immunities Act case.

-In Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), he briefed and argued a case presenting question of proper standard of appellate review in punitive damages cases.

-He briefed the leading Supreme Court punitive damages cases: State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Honda Motor Co. v. Oberg, 512 U.S. 415 (1994);TXO Production Co. v. Alliance Resources Corp., 509 U.S. 443 (1993).

-He briefed the leading Supreme Court cases on class action settlements: Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

-He briefed the leading Supreme Court case scientific evidence: Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869 (1996).

-He has defended over a dozen consumer class actions involving mortgage and credit card issues relating to the 2008-2009 financial crisis, with billions of dollars at stake. For example, he successfully defended in the Ninth Circuit a defense verdict in an adjustable-rate mortgage case in the Central District of California involving a certified class alleging over $750 million in damages. He won district court dismissal of a Truth-in-Lending Act home-mortgage class action seeking over $100 million in damages in the Northern District of California and successfully defended that judgment on appeal. He secured dismissal on appeal in the Third Circuit of a nationwide class action seeking hundreds of millions of dollars for alleged violations of the Real Estate Settlement Procedures Act.

-He briefed and argued a Federal Circuit appeal on behalf of Allergan plc presenting the question of first impression of sovereign immunity in inter partes review proceedings before USPTO.

-He briefed and argued a First Circuit appeal involving over $200 million in foreign tax credits for a leading bank.

-He successfully briefed a landmark appeal holding the NCAA liable under federal antitrust law, O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir 2015), cert. denied, 137 S.Ct. 277 (2016), and then successfully briefed and argued an appeal defending the antitrust fee award.

-He successfully briefed and argued a Second Circuit appeal on behalf of a hedge fund defendant in a civil securities fraud action.

-He briefed and argued a Second Circuit appeal on behalf of a major bank presenting the question of the enforceability of an option under an interest-rate-swap agreement.

-He briefed and argued a Third Circuit appeal on behalf of a major casino presenting the question whether a surreptitious scheme of “marked” cards in the game of Baccarat can give rise to a breach of contract action under the New Jersey Casino Control Act.

-He has briefed and argued numerous cases on the cross-jurisdictional impact of class action tolling of statutes of limitation in courts including the Second Circuit, Third Circuit, Eastern District of Louisiana, Fifth Circuit, and the Supreme Court of Delaware.

-He briefed and argued a Fifth Circuit appeal presenting the question whether the prudential “tribal exhaustion” doctrine displaces the statutory command of the Federal Arbitration Act.

-He briefed and argued a California state appeal on behalf of health care provider in a multi-million-dollar medical malpractice case.

-He briefed and argued a Federal Circuit constitutional challenge to the First-Inventor-To-File provisions of the America Invents Act of 2011.

-He briefed and argued a Second Circuit constitutional challenge to provisions of Bankruptcy Reform Act of 2005 restricting attorney speech.

-He briefed and argued numerous appeals involving the ability of Enron shareholders to file state-law securities fraud claims in state court.

-He briefed and argued numerous Third Circuit appeals involving challenges to the Diet Drugs Products Liability settlement, including such questions as whether the federal court approving a class action settlement is permitted to regulate ongoing state trial court proceedings by requiring stipulation to a reverse bifurcation procedure.