Joshua J. Fougere

JOSH FOUGERE focuses his practice on appellate litigation, as well as critical motions and complex commercial litigation. He assists clients in a broad range of cases involving questions of constitutional, statutory and administrative law at all stages of litigation. Josh regularly drafts motions and pleadings and has helped to author numerous briefs in the U.S. Supreme Court, in the federal and state courts of appeals, and in federal and state trial courts.

Josh’s representative matters include:

• Thompson v. Armstrong, 134 A.3d 305 (D.C. 2016) — successfully argued on behalf of the appellant in obtaining reversal with instructions to enter judgment under First Amendment defense to state-law tort claim.  The judgment that was reversed had been reported as one of the 10 largest verdicts or settlements in D.C. in 2014
• PBM Capital Investments, LLC v. Gen. Elec. Co., No. 3:15-CV-00037, 2016 WL 3982590 (W.D. Va. July 22, 2016) — successfully argued on behalf of defendant in obtaining dismissal of a complaint for lack of personal jurisdiction in federal district court
• Successfully secured dismissal with prejudice of False Claims Act allegations against Fortune 200 company under the False Claims Act’s public disclosure and first-to-file bars
• Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018) — successfully represented petitioner in case involving appellate review of a plain error in Sentencing Guideline calculations under Federal Rule of Criminal Procedure 52(b)
• Raniere v. Microsoft Corp., 887 F.3d 1298 (Fed. Cir. 2018), 673 F. App’x 1008 (Fed. Cir. 2017) — successfully represented appellee Microsoft Corporation in affirming dismissal of patent infringement case for lack of standing and subsequently in affirming a fee award under 35 U.S.C. § 285.
• Whalen v. Michaels Stores, Inc., No. 16-260 (L), 2017 WL 1556116 (2d Cir. May 2, 2017) — successfully represented appellee in Second Circuit decision affirming dismissal of class action complaint because plaintiff’s allegations that her credit card information was stolen in a data breach did not give rise to Article III standing
• LifeNet Health v. LifeCell Corp., 837 F.3d 1316 (Fed. Cir. 2016) — successfully defended $35 million jury verdict on appeal against arguments of claim construction, non-infringement and invalidity
• Shire Pharms. v. Johnson Matthey Pharmaceuticals, 802 F.3d 1301 (Fed. Cir. 2015) — the Federal Circuit, in the first appellate decision to address the application of the safe harbor provision of the Hatch-Waxman Act to suppliers of pharmaceutical ingredients, reversed a summary judgment ruling holding Sidley client Johnson Matthey liable for patent infringement and entered judgment of non-infringement as a matter of law
• Successfully defended decision dismissing securities class action complaint with prejudice on behalf of China Big Four accounting firm in the Second Circuit
• Air Wisconsin Airlines v. Hoeper, 134 S. Ct. 852 (2014) — successfully assisted Air Wisconsin in obtaining immunity under the Aviation and Transportation Security Act
• Roberts v. Sea-Land Services, 132 S. Ct. 1350 (2012) — successfully assisted respondent in a case involving the construction and application of federal worker compensation laws

Josh also has significant experience drafting amicus briefs in high-profile cases, including:

• Oil States Services, LLC v. Greene’s Energy Group LLC, et al. (S. Ct. No. 16-712) – case involving constitutional challenge to the inter partes review process under Article III and the Seventh Amendment
• Christie, et al. v. National Collegiate Athletic Association, et al. (S. Ct. Nos. 16-476, 16-477) – case involving constitutional challenge to the Professional and Amateur Sports Protection Act under the anti-commandeering doctrine
• Universal Health Services, Inc. v. United States ex rel. Escobar (S. Ct. No. 15-7) – case involving false certification theory under the False Claims Act
• Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund (S. Ct. No. 13-435) – case involving liability for statements of opinion under federal securities statute
• Department of Transportation v. Association of American Railroads (S. Ct. No. 13-1080) – case involving non-delegation doctrine and government delegation of rulemaking authority