When it comes to taking on the government in high-stakes appellate litigation, Jones Day doesn’t shy away. "Substantively, I think we’re different than a lot of fine appellate practices, because I think our practice tends to focus on fundamental public policy and constitutional disputes with the government," partner Michael Carvin said.
The firm represented the U.S. Chamber of Com­merce and the Coalition for a Democratic Workplace in its challenge to the recess appointments made by President Obama to the National Labor Relations Board. The U.S. Court of Appeals for the D.C. Circuit invalidated the three appointments. The board announced in March that it would appeal the ruling to the U.S. Supreme Court.
The ruling calls into question any acts made by the labor board since January 2012. Furthermore, it calls into question the validity of the recess appointment of Richard Cordray, director of the Consumer Financial Protection Bureau. "The NLRB is unable to do business — or should be unable to do business," Carvin said. "But it also hangs a cloud over the Consumer Financial Protection Bureau and everything they do."
When R.J. Reynolds Tobacco Co. challenged the U.S. Food and Drug Administration, partner Noel Francisco argued that the graphic warning labels that the agency wanted to mandate for cigarette packages violated the First Amendment. "They have just as much of a right to speak about the products as they have to not speak about their products," Carvin said.
Another closely watched case was that of the Association for Molecular Pathology against the U.S. Patent and Trademark Office. A team of Jones Day attorneys successfully defended Myriad Genetics Inc.’s patent claims to DNA molecules used to diagnose and treat breast cancer. The Myriad case was argued by Gregory Castanias.This was the second successful patent defense for the company. The U.S. Court of Appeals for the Federal Circuit ruled that the molecules differ from those that occur naturally and therefore are patentable. The Myriad case was argued by Gregory Castanias.
A bittersweet victory came in the firm’s challenge on behalf of the National Federation of Independent Business to the Patient Protection and Affordable Care Act’s mandate that individual citizens buy health insurance. The Supreme Court accepted the firm’s arguments against the mandate, but sustained it under Congress’ taxing authority. Carvin and partner Gregory Katsas argued that case. Carvin argued that the commerce clause does not allow the government to regulate inactivity and therefore should not compel someone to purchase insurance.