Steffen N. Johnson, Partner

Steffen Johnson joined the firm in 2005 as a litigation partner in the Washington, D.C. office and a founding member of the firm’s nationwide appellate and critical motions practice. He concentrates his practice on appellate proceedings of all kinds, on the preparation of high-risk cases for eventual appeal, and on motions that may prove critical to the outcome of a case at the trial court level. He is listed in The Best Lawyers in America, a peer-review survey of more than 2.8 million confidential evaluations, for his experience in appellate litigation. When the National Law Journal named Winston & Strawn to the “Appellate Hot List” in 2009, Mr. Johnson was involved in all of the cases it cited. And he has been named to the Legal Times’ and National Law Journal’s prestigious “‘40 Under 40’ Washington’s Rising Stars” list, which every four years highlights 40 lawyers in the Washington metropolitan area younger than 40 who, they predict, will play a major role in the nation’s legal community.

Mr. Johnson has extensive experience in complex appellate, commercial, and constitutional litigation. He has personally argued in the Supreme Court of the United States, and he has served as a principal brief writer in more than 40 cases before that Court, including for parties in several cases at the merits stage. He has also briefed and argued numerous cases in the lower federal and state appellate courts, including many cases in various federal circuit courts.

Mr. Johnson’s practice spans a wide range of substantive areas, including class actions, patents, products liability, preemption, antitrust, securities, labor and employment, telecommunications, pharmaceuticals, the environment, property rights, constitutional law, the First Amendment, and religious institutions. Representative clients for which Mr. Johnson has handled matters include Caraco Pharmaceuticals, Dell Inc., Ernst & Young LLP, American Airlines, Inc., Caterpillar, Inc., Mayne Pharma (USA) Inc., and Hospira, Inc.

The following are a representative sampling of cases that Mr. Johnson has briefed or argued in the Supreme Court of the United States:

Representative U.S. Supreme Court experience:

Holmes v. South Carolina, 547 U.S. 319 (2006)
Orally argued for 18 states as amici curiae, obtaining ruling that clarified constitutional validity of the amici states’ rules on admission of third-party guilt evidence.

Free Enterprise Fund v. Public Company Accounting Oversight Bd, No. 08-681 (pending)
On behalf of the CATO Institute, filed an amicus brief in support of a challenge to the constitutionality of the Public Company Accounting Oversight Board as a violation of the separation of powers.

Preston v. Ferrer, 128 S. Ct. 978 (2008)
On behalf of amicus curiae U.S. Chamber of Commerce, advocated the prevailing position in a case holding that the Federal Arbitration Act supersedes state laws lodging jurisdiction over otherwise arbitrable disputes in any non-arbitration forum, including administrative agencies).

New York State Board of Elections v. Lopez Torres, 128 S. Ct. 791 (2008)
On behalf the Mid-Manhattan Branch of the NAACP and the Metropolitan Black Bar Association, filed an amicus brief in successful defense of New York’s procedure for nominating candidates for trial-court judgeships by party convention.

Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007)
On behalf of the National Association of Manufacturers, PhRMA, and other business amici, advocated the winning position in a case recognizing that procedural due process principles preclude a jury from imposing a punitive damages to punish the defendant for harm to non-parties.

United Haulers Assoc. v. Oneida-Herkimer Solid Waste Mgmt., 127 S. Ct. 1786 (2007)
Representing municipal waste management agencies as amici, advocated the winning position in a case holding that the Commerce Clause does not invalidate local waste flow control ordinances.

SAFECO Insurance Co. v. Burr, 127 S. Ct. 2201 (2007)
In amicus briefs filed in support of the petition for certiorari and on the merits, advocated winning position in a case involving the scope of the Fair Credit Reporting Act and the availability of punitive damages for violations of that statute.

Smith v. Texas, 127 S. Ct. 1686 (2007)
Co-counsel for 21 states as amici in case in which the Court adopted clients’ position rejecting the idea that state courts must apply federal harmless-error standards in assessing the effect of a federal-law error in the states’ own courts.

Morse v. Frederick, 127 S. Ct. 2618 (2007)
Filed amicus briefs in support of certiorari and on the merits on behalf of non-profit groups dedicated to fighting substance abuse in a First Amendment case involving a school’s discipline of a student for displaying a pro-drug message.

League of United Latin American Citizens v. Perry, 126 S. Ct. 2594 (2006)
Represented several states as amici in a case involving a constitutional challenge to the 2003 congressional redistricting by the Texas legislature, a case in which the Court re-emphasized the wide discretion enjoyed by states in establishing congressional districts.

Arbaugh v. Y& H Corp., 546 U.S. 47 (2006)
Filed amicus brief in case concerning whether the 15-employee requirement of Title VII was a limitation on the subject matter jurisdiction of the federal courts.

Gosselin World Wide Moving, N.V. v. United States, cert. denied, 547 U.S. 1002 (2006)
Filed amicus brief in support of certiorari on behalf of Government of Belgium in case involving validity of U.S. exercise of extraterritorial jurisdiction under criminal antitrust laws.

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)
Counsel and principal brief-writer for respondent Mercury Marine in case involving preemption of products liability claim under Federal Boat Safety Act.

Mitchell v. Helms, 530 U.S. 793 (2000)
Co-counsel for petitioners, obtained ruling affirming constitutionality of neutral provision of computers and other educational assistance to religious schools, overruling prior contrary precedent.

Public Lands Council v. Babbitt, 529 U.S. 728 (2000)
Co-counsel and principal brief-writer for petitioners in case challenging interpretation of Taylor Grazing Act regulations.

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)
Co-counsel and brief-writer for petitioners, obtained ruling that private insurance companies were not state actors for purposes of decisions concerning utilization review under state workers’ compensation law.

Other representative litigation experience:

In re HealthSouth Corp. Securities Litigation (11th Cir.) (pending).
Representing Ernst & Young in interlocutory appeal of class certification ruling in putative Rule 10b-5 securities class action.

Dell Inc. v. Kappos, (E.D. Va.) (pending).
Represented Dell in action challenging the Patent & Trademark Office’s improper revival of a patent.

Sanofi-Aventis U.S. LLC et al. v. Sandoz, Inc. (Fed. Cir. 2009).
On behalf of defendants Mayne Pharma and Hospira, defeated attempt to delay FDA approval of abbreviated new drug application by issuance of a “stay pending appeal.”

Casanova v. American Airlines, (7th Cir.) (pending). 
Representing American Airlines in appeal challenging $1.1 million verdict in retaliatory discharge case arising under the Illinois Workers’ Compensation Act.

Trudeau v. Federal Trade Commission, 579 F.3d 754 (7th Cir. 2009).
Obtained reversal of $37.6 million civil contempt sanction and ban on commercial speech of New York Times #1 best-selling author.

Caraco Pharmaceutical Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278 (Fed. Cir. 2008), cert. denied, ___ U.S. ___ (2009).
Obtained reversal of an adverse decision in a patent case raising a critical jurisdictional issue under the Hatch-Waxman Act: whether a unilateral “covenant not to sue” for patent infringement eliminated the “case or controversy” between the patentee and its generic competitor, where the covenant did not concede the issue of non-infringement and prevented the generic drug company from entering the market).

Winnett v. Caterpillar, Inc., 553 F.3d 1000 (6th Cir. 2009).
On behalf of major manufacturer, obtained interlocutory review and reversal of district court ruling that a class of retired employees obtained vested rights in lifetime, no-cost retiree medical benefits when they became eligible for retirement, despite the fact that new labor agreements were in force when they actually retired.

Perretta v. Prometheus Dev. Corp., 520 F.3d 1029 (9th Cir. 2008), vacated on grant of rehearing, 527 F.3d 853 (9th Cir. 2008).
On behalf of general partner of a major real estate development partnership, obtained rehearing and reversal of adverse decision reinstating a claim for breach of fiduciary duty based on a merger approved by the limited partners in which the general partner had (and disclosed) a conflict of interest.

Commonwealth Scientific and Industrial Research Organisation v. Buffalo Technology (USA), Inc., No. 2007-1449 (Fed. Cir.)
On behalf of amicus TPL Group Limited, argued that injunctive relief is available to remedy patent infringement where patent is held by non-practicing patent holder.

United States v. Libby, 2007 WL 4545871 (D.C. Cir. Dec. 13, 2007) (No. 07-3068) (appeal dismissed).
On behalf of amicus Landmark Legal Foundation, challenged constitutionality, under Appointments Clause, of appointment of federal Special Counsel.

Prior to joining the firm, Mr. Johnson served in the Office of Legal Counsel, U.S. Department of Justice, which advises the president, the attorney general, and other senior executive branch officials on complex constitutional and statutory questions. While at OLC, Mr. Johnson served as a principal adviser on constitutional questions concerning the president’s Faith-Based and Community Initiative. He earlier spent several years as a member of the Supreme Court & Appellate Practice Group at Mayer, Brown, Rowe & Maw in Chicago. After graduating from law school, Mr. Johnson served as a law clerk to the Hon. Donald P. Lay of the Eighth Circuit.

Honors and Awards

Activities

Education

Speeches and Publications

Mr. Johnson has spoken and published extensively in both scholarly journals and the popular press. His scholarly articles have appeared in publications such as Constitutional Commentary and the Boston College, Notre Dame, and the Minnesota Law reviews. His op-ed pieces have appeared in newspapers such as The New York Times, the Minneapolis Star-Tribune, The Washington Times, and The National Law Journal. 

In addition, Mr. Johnson has presented papers at symposia on various constitutional issues at Stanford Law School, The University of Chicago Law School, Boston College Law School, University of Minnesota Law School, American Association of Law Schools National Conference, American Bar Association (Section of Environment, Energy, and Resources), the American Constitution Society, and The Federalist Society. He has appeared on various radio and television programs to discuss constitutional and commercial issues.

A sampling of his publications includes: “Keeping Current on Securities: Supreme Court Limits Private Lawsuits,” Business Law Today at 26 (vol. 17, no. 5, May/June 2008) (with Gene C. Schaerr, Linda T. Coberly, and William P. Ferranti); “A Blow to Private Whistleblowers,” The Corporate Counselor, Vol. 21, No. 12 (May 2007) (with William P. Ferranti & Andrew C. Nichols); “The Anatomy of an Effective Reply Brief,” Certworthy (Summer 2006); “Scalito?”, National Law Journal (Nov. 14, 2005) (with Gene C. Schaerr); “How Filibusters Drain Quality,” Wash. Times (May 18, 2005); “Expressive Association and Organizational Autonomy,” 85 Minn. L. Rev. 1639 (2001); “Of Politics and Pulpits - A First Amendment Analysis of IRS Restrictions on the Political Activities of Religious Organizations,” 42 B.C. L. Rev. 875 (2001); “A Case the Scouts Had to Win,” N.Y. Times, at A30 (June 30, 2000); “A Civil Libertarian Case for the Constitutionality of School Choice,” 10 Geo. Mason Civ. Rts. L.J. 1 (1999/2000); “State Action, Due Process, and Regulated Health Care: The Downstream Effects of American Manufacturers Mutual Insurance Company v. Sullivan,” Health Care Law Monthly 3 (June 1999) (with Michael W. McConnell); “Scalia’s Sermonette,” 72 Notre Dame L. Rev. 863 (1997) (with Michael S. Paulsen); Review of Steven D. Smith, “Foreordained Failure: The Search for a Constitutional Principle of Religious Freedom,” 14 Const. Comm. 365 (1997); and “A Regulatory ‘Waste Land’: Defining a Justified Federal Role in Crop Insurance,” 72 N.D. L. Rev. 505 (1996).