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 presents oral argument, 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:
- Iron Oak Techs., LLC v. Microsoft Corp., 817 F. App’x 955 (Fed. Cir. 2020) — successfully argued on behalf of appellee in securing affirmance-in-part and dismissal-in-part in appeal regarding pre-suit notice under 35 U.S.C. § 287
- 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
- Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964 (Fed. Cir. 2021) — Successfully represented plaintiff-appellee Bayer in securing unanimous affirmance of $182 million judgment in opinion that rejected every issue Baxalta had appealed, including claim construction, infringement, enablement, and damages
- United States v. AT&T, Inc., 916 F.3d 1029 (D.C. Cir. 2019) — successfully represented AT&T against the government’s challenge to AT&T’s $85 billion merger with Time Warner
- 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) — successfully secured reversal in the first Federal Circuit decision to address the application of the safe harbor provision of the Hatch-Waxman Act to suppliers of pharmaceutical ingredients
- 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
Josh also has significant experience drafting amicus briefs in high-profile cases, including:
- N.H. Lottery Comm’n et al. v. Barr, (1st Cir. No. 19-1835) – case involving challenge to the Office of Legal Counsel’s 2018 opinion that the Wire Act extends to beyond sports betting to all interstate gambling
- 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 and materiality 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