Covington & Burling’s appellate lawyers scored major wins during the past year, successfully litigating cases involving anti-obscenity regulations, insurance coverage arising from the Deepwater Horizon disaster and products liability.
Appellate and Supreme Court practice chief Robert Long filed a brief before the U.S. Supreme Court on behalf of CBS and NBC television affiliates in what he described as a "titanic battle that’s been going on for years." At issue: a Federal Communications Commission policy that broadcasting so-called fleeting expletives or brief nudity violated a criminal anti-obscenity statute.
[Note: As first written, this item indicated that Robert Long delivered oral arguments before Supreme Court in FCC v. Fox Television Stations Inc. In fact, he presented a brief.]
Most of the parties in the case, FCC v. Fox Television Stations Inc., focused on First Amendment issues, but Long led off with an argument that the FCC’s policy was so vague that it violated the due process clause. In June 2012, the court unanimously agreed, saying, "Regulated parties should know what is required of them."
"They went right along with our brief, and even cited it — which is always a feather in your cap," Long said.
Another major win came in March 2013 before the U.S. Court of Appeals for the Fifth Circuit on behalf of a BP PLC subsidiary. Following the Deepwater Horizon spill, insurers that had issued policies to rig owner Transocean Ltd. argued that BP lacked pollution liability coverage because it had indemnified Transocean.
In 2011, a New Orleans federal judge agreed with the insurers, but Covington lawyers David Goodwin and Allan Moore convinced the Fifth Circuit to reverse. The appeals court in Ranger Insurance Ltd. v. BP Exploration and Production Inc. held that the insurance policy and the indemnity provisions were wholly separate. As a result, BP could claim at least $750 million in coverage. The case "is the biggest thing in the world of insurance litigation today," Long said.
Covington lawyers led by Paul Schmidt and Michael Imbroscio continued a string of victories on behalf of F. Hoffmann-La Roche Inc., which has been hit with more than 7,000 lawsuits related to side effects from the company’s acne medicine, Accutane. In August 2012, a New Jersey intermediate appeals court reversed three jury verdicts totaling more than $15 million. The court found for Roche based on testimony by physicians about the strength of Roche’s product warnings and that doctors understood the medicine’s risks.
Covington lawyers have now prevailed in 11 appeals for Roche in the Accutane litigation, with earlier wins coming in the Tenth and Eleventh circuits and the New Jersey Supreme Court. "It’s a continuing success story," Long said.