Supreme Court Practice
Gupta Wessler LLP maintains an active practice before the Supreme Court of the United States. We brief and argue cases before the Court, devise amicus strategies, work with the Office of the Solicitor General, and assist others in preparing their cases before the Court.
Six of the firm’s lawyers have presented oral argument before the U.S. Supreme Court (a total of sixteen times); many of our lawyers have briefed dozens of cases before the Court; some have clerked at the Court; others have worked on Supreme Court cases in the federal government; and one was appointed to argue by the Court itself. The firm’s lawyers also regularly serve as instructors in Harvard Law School’s Supreme Court Litigation Clinic.
Our experience before the Court has covered a wide range of issues, including administrative law, antitrust, arbitration, attorneys’ fees, bankruptcy, class actions, communications law, constitutional law of all stripes, consumer law, copyright, employment law, environmental law, federal jurisdiction, labor law, and preemption.
We have particularly extensive experience with defeating petitions seeking review of important victories, and are often retained at the petition stage to keep cases out of the Court. We also have a strong track record of getting certiorari granted. Among private firms that focus on the representation of plaintiffs and public-interest clients, our Supreme Court practice is unmatched.
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Recent matters include:
Cantero v. Bank of America, N.A. – Preemption. Gupta Wessler represents the plaintiffs in this dispute over the extent to which the National Bank Act, as amended by the Dodd-Frank Act in 2010, preempts state consumer protection laws. In a class action against Bank of America, the Second Circuit held that the National Bank Act preempts New York’s escrow-interest law, which requires mortgage lenders to pay a modest interest rate on funds advanced by borrowers to cover taxes and insurance. Repudiating the field-preemption approach taken the Office of the Comptroller of the Currency, the United States filed a brief agreeing with the plaintiffs that these laws are not preempted. Jon Taylor will argue this case on February 27, 2024.
Bissonnette v. LePage Bakeries Park St., LLC – Arbitration. Gupta Wessler represents truck drivers in a wage-and-hour dispute with Flowers Foods, the conglomerate that manufacturers and sells Wonder Bread and other baked goods. The truck drivers contend that, because they are engaged in transportation work, they fall within the Federal Arbitration Act’s exemption for “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The question presented is whether, to be exempt from the Federal Arbitration Act, a class of workers that is actively engaged in interstate transportation must also be employed by a company in the transportation industry. Jennifer Bennett argued this case on February 20, 2024.
Vidal v. Elster – First Amendment. Gupta Wessler represents Steve Elster in this First Amendment challenge to a provision of the Lanham Act that bars the registration of any trademark “identifying a particular living individual” without their written consent—a prohibition that also extends, uniquely, to “a deceased President of the United States during the life of his widow.” 15 U.S.C. § 1052(c). By requiring consent, this clause effectively precludes the registration of any mark that criticizes public figures—even as it allows them to register their own positive messages about themselves. Invoking a memorable exchange from a 2016 presidential debate, Steve Elster sought to register the words “Trump too small” for use on T-shirts, to convey a critical political message about former President Trump and his policies. Becuase Elster could not secure former President Trump’s consent, his application was denied. Jon Taylor argued this case on November 1, 2023.
Southwest Airlines v. Saxon – Arbitration. In June 2022, Gupta Wessler won this U.S. Supreme Court ruling that allows some workers to sue their employers despite forced arbitration clauses in their employment contracts. Our client, Latrice Saxon, loads cargo for Southwest Airlines. In an opinion by Justice Thomas, the Court unanimously held that she belongs to a “class of workers engaged in foreign or interstate commerce” that is exempt from the Federal Arbitration Act of 1925. Jennifer Bennett presented argument for Ms. Saxon, in a continuation of her long-running strategy to bring the Court’s reading of the FAA closer to its original historical meaning. Slate cited the case as one where “good lawyering” made 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.”
Ford Motor Company v. Montana Eighth Judicial District – Personal Jurisdiction. In March 2021, Gupta Wessler won this U.S. Supreme Court ruling expanding consumers’ access to the courts. Deepak Gupta argued these two consolidated cases on behalf of the families of injury victims seeking to sue Ford in the states where their injuries occurred, alleging defects in cars that Ford regularly sells in those states. Ford argued that personal jurisdiction was foreclosed because the first sale of the particular vehicles involved in the accidents took place outside the forum states. The Court unanimously rejected Ford’s argument, adopting our proposed test that focuses on whether the manufacturer sells the same product in the same state. Deepak Gupta was awarded the National Civil Justice Institute’s 2022 Appellate Advocacy Award, which “recognizes excellence in appellate advocacy in America,” for his advocacy in Ford. Following “three decades” of personal-jurisdiction decisions that had “made it increasingly harder for plaintiffs to hold wrongdoers accountable in court, the Institute noted that Ford “represents a stunning break in the Court’s long-running trend.”
Lombardo v. City of St. Louis – Excessive Force. Nicholas Gilbert was handcuffed and shackled, facedown, in a holding cell when six St. Louis police officers pressed their collective weight into his back—for 15 minutes, until he died. They did so even as Gilbert–a 5′ 3″, 160-pound homeless man–tried to raise his chest and breathe, saying, “It hurts. Stop.” After the Eighth Circuit deemed these actions constitutional, Gupta Wessler stepped in. Citing parallels with the killing of George Floyd, the firm’s cert petition–written by Jon Taylor and backed by prominent amici–urged the Supreme Court to summarily toss out the ruling. In a rare move, the Court voted 6-3 to summarily vacated the Eighth Circuit’s pro-officer decision, signaling that courts should consider “well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed.”
Intel Corp. v. Sulyma – ERISA. Matt Wessler argued and won a rare 9-0 victory for a class of workers seeking to hold companies accountable under ERISA for taking imprudent risks with retirement savings. The Wall Street Journal called the decision a “pretty significant” victory for “people’s ability to bring lawsuits over fiduciary breaches” under ERISA.
Smith v. Berryhill – Administrative Law, Social Security. Deepak Gupta was appointed by the Court to brief and argue this case as amicus curiae, in support of the Sixth Circuit’s judgment after the Solicitor General reversed its position and sided with the petitioner. In its opinion, the Court noted that “we appointed Deepak Gupta as amicus curiae to defend the judgment below” and that “[h]e has ably discharged his duties.”
Hernández v. Mesa – Qualified Immunity, Extraterritoriality. The Court granted our petition on behalf of the family of Sergio Hernández, an unarmed Mexican teenager who was shot to death by a U.S. Border Patrol agent. The Court issued a per curiam handing our clients a narrow victory. Reversing a contrary 15-0 en banc holding of the Fifth Circuit, the Court held (without any disagreement) that it was error to grant qualified immunity based on facts unknown to the officer at the time of the incident. The Court also remanded to the lower court to determine in the first instance whether to recognize a damages remedy.
Expressions Hair Design, et al. v. Schneiderman – First Amendment. The Court granted our petition for certiorari on behalf of merchants bringing First Amendment challenges to state “no-surcharge” laws, which criminalize truthful speech by merchants and keep consumers in the dark about the high cost of credit cards. The Court unanimously held that New York’s law is a regulation of merchants’ speech, not conduct.
