Michael J. Showalter

Drafted U.S. Supreme Court merits or certiorari-stage briefs on behalf of defense contractor in statutory-interpretation case; energy company in Takings Clause case; automobile company in retirement-plan case; energy company in administrative-law case; and fitness company in personal-jurisdiction case. E.g., Cochise Consultancy Inc. v. United States ex rel. Hunt (U.S. 2019) (represented defense contractor); Strang v. Ford Motor Co. (U.S. 2018) (represented automobile company). Lead drafter for U.S. Supreme Court amicus briefs in administrative law, Fourth Amendment, statutory interpretation, and retirement-plan cases. E.g., SEC v. Jarkesy (U.S. 2024) (represented telecommunications trade associations); Calcutt v. FDIC (U.S. 2024) (represented banking trade association). Lead drafter in cases before D.C. Circuit, Second Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Seventh Circuit, Ninth Circuit, Eleventh Circuit, Delaware Chancery Court, and state and federal trial courts in matters spanning constitutional law, administrative law, complex commercial litigation, statutory interpretation, contract interpretation, class certification, and tort law. E.g., LTD Broadband v. FCC (CADC 2024); Hikvision v. FCC (CADC 2024); DIRECTV v. Mission Broadcasting (CA2 2024); Cipla v. Amgen (CA3 2019); Baxter v. HHS (CA4 2024); Impossible Foods v. Impossible X (CA9 2024). Primary management responsibility for litigation in Florida and New York state courts on behalf of ore-mining company bringing actions to enforce international arbitration award and recover fraudulently transferred property. Identified, developed, and drafted statutory-interpretation argument for position that previously had been universally rejected by hornbooks and the six courts to address it but won in federal district court. Palmer v. Amazon (EDNY 2020).

Last week the U.S. Supreme Court held in SEC v. Jarkesy that a defendant in a securities fraud suit has the right to be tried by a jury in an Article III court, rather than before an agency’s own tribunal. The Court’s analysis largely echoed an amicus brief Wiley submitted on behalf of several national communications trade associations.

Last week, in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the U.S. Supreme Court held that the six-year statute of limitations that applies to facial challenges of agency action under the Administrative Procedure Act (APA) does not begin to run against a party until that party is first injured by the agency action, whenever that might be. In doing so, the Court overruled the law in “[a]t least six Circuits,” under which such challenges had to be brought within six years of the date the agency action became final, no matter when the party was first injured by it. The Court’s analysis largely echoed an amicus brief Wiley submitted on behalf of the Cato Institute.

Last week, the U.S. Supreme Court overruled its controversial Chevron doctrine in Loper Bright Enterprises v. Raimondo, holding that courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Instead, courts must “exercise independent judgment” to reach the text’s “best reading.” Courts must give “careful attention” to any agency interpretation that was issued contemporaneously with the statutory provision and has remained consistent over time.

Wiley’s Jeremy Broggi and Michael Showalter analyze the potential impact of a pending US Supreme Court case on new businesses that are subject to old and questionable federal laws.