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 and across many diverse industries. 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.

In recognition of his success, Josh was named among an elite group of “lawyers who have wielded influence in their practice areas in the D.C. area and beyond,” and honored as a 2021 “D.C. Rising Star” by The National Law Journal.

Josh’s representative matters include:

• Successfully argued on behalf of appellee in Federal Circuit appeal from an inter partes reexamination concerning networking technology.
• Lead appellate counsel for defendant-appellee Block, Inc., in Federal Circuit case holding that all asserted claims, directed to the processing of financial transactions, were ineligible under 35 U.S.C. § 101. 
• 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.
• Ilczyszyn v. Sw. Airlines Co., 295 Cal. Rptr. 3d 533 (Ct. App. 2022) – successfully represented appellee Southwest Airlines in securing affirmance of jury verdict after weeks-long trial and affirmance of the application of immunity under the Aviation and Transportation Security Act.
• Int’l Game Tech. PLC v. Garland, 628 F. Supp. 3d 393 (D.R.I. 2022) – successfully represented plaintiff IGT in securing declaratory judgment that the Wire Act applies only to sports betting, in a case that trade press described as “hitting the jackpot” and “a win for the online gaming industry.”
• U.S. ex rel. Dillon v. Incyte Corp. (E.D. Pa.) – Represented defendant Incyte in civil qui tam litigation involving charitable donations to patient assistance foundations. Led summary judgment briefing, after which the matter was resolved very favorably without any admission of liability or a Corporate Integrity Agreement.
• 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.
• Amgen Inc. v. Amneal Pharms. LLC, 945 F.3d 1368 (Fed. Cir. 2020) – Represented appellant Amgen in serial appeals in ANDA litigation against numerous generic defendants concerning secondary hyperthyroidism drug Sensipar®. Secured reversal of a claim construction and non-infringement judgment against competitor while affirming infringement against another.
• 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.  
• 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.
• 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:

• United States ex rel. Polansky v. Executive Health Resources, Inc. (S. Ct. No. 21-1052) – case involving the government’s right to dismiss qui tam action after declining to intervene, with amicus brief focused on the Article II and separation-of-powers concerns with stripping the government of dismissal right.
• 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.

Josh is a member of the Edward Coke Appellate Inn of Court, where he recently served on the Executive Board, and Josh is a member of the Giles S. Rich American Inn of Court. Josh serves as a co-chair of the Advocacy Committee and is a member of the Survey Committee for the National Associate of Women Lawyers. He was also selected as a 2018–2019 Global Fellow by the Federal Circuit Bar Association.