C. KevinMarshall

Partner

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Kevin Marshall provides clients analysis, counseling, and advocacy involving novel or complex legal issues. This includes appeals at all levels, appellate petitions, dispositive and other critical trial court motions (class certification; Daubert), and internal risk analyses.

In recent years, Kevin's litigation has included contract interpretation and bankruptcy-related disputes in Delaware Chancery and federal circuit courts; bankruptcy motions and appeals (district court and directly to circuit court, interlocutory, and final) in a series of chapter 11 cases, particularly in innovative asbestos-related bankruptcies such as those of Bestwall, DBMP, and LTL Management; defense under federal and state False Claims Acts (FCA); and defense of foreign defendants under the Anti-Terrorism Act. His litigation against or involving the federal government has included takings and related claims in the Court of Federal Claims and Federal Circuit on behalf of investment funds; lawsuits under the Freedom of Information Act (FOIA) on behalf of both plaintiffs and an intervener-defendant seeking to protect its information; and white collar charges of smuggling by a foreign defendant, failure to register as a foreign agent, and wiretapping.

Before joining Jones Day, Kevin was a deputy assistant attorney general in the U.S. Department of Justice's Office of Legal Counsel. He provided authoritative written legal opinions and other legal advice, throughout the executive branch, on the Constitution, treaties, international law including the law of war, and federal statutes and regulations. He also testified three times before Congress.

Experience

  • Bestwall successfully defends preliminary injunction staying litigation against affiliated third parties during Chapter 11 bankruptcy caseJones Day represents Bestwall LLC, a Georgia-Pacific affiliate, in its Chapter 11 bankruptcy case in the Western District of North Carolina seeking to resolve significant asbestos liabilities by creating a trust under 11 U.S.C. § 524(g) to compensate current and future claimants.
  • Bestwall wins Fourth Circuit decision upholding sanctions against claimants and counsel for violating discovery orderJones Day represented Bestwall LLC, a Georgia-Pacific affiliate, in defeating an appeal by asbestos tort claimants and their counsel of orders holding them in contempt and sanctioning them in Bestwall's ongoing Chapter 11 bankruptcy case in the Western District of North Carolina.
  • Kaiser Gypsum and Hanson Permanente argue before U.S. Supreme Court that insurer without legal interest in bankruptcy estate lacks right to challenge reorganization planOn behalf of the Kaiser Gypsum Company and Hanson Permanente Cement, Jones Day urged the U.S. Supreme Court to uphold a Fourth Circuit decision making clear that an insurer lacks the right to challenge a reorganization plan that leaves its legal rights in the same place as they were before the bankruptcy.
  • Bestwall obtains reversal of collateral attack on bankruptcy court subpoenasJones Day represented Bestwall, LLC, a Georgia-Pacific affiliate, in successfully opposing a collateral attack by asbestos tort claimants and trusts on subpoenas issued in Bestwall’s ongoing Chapter 11 bankruptcy case in the Western District of North Carolina.
  • LTL Management, a Johnson & Johnson affiliate, files for chapter 11 to equitably and permanently resolve all current and future talc-related claims against itJones Day represents LTL Management LLC in its chapter 11 bankruptcy case filed October 14, 2021 in the Western District of North Carolina.
  • Prisoner obtains significant precedential victory in Seventh Circuit appealJones Day obtained a significant victory for a pro bono client in a Seventh Circuit appeal, resulting in a precedential decision.
  • Pro bono client challenges parental modification order in Florida courtsJones Day, along with the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), represented a client in Florida’s Fifth District Court of Appeal and in the Florida Supreme Court, resulting in partial relief from an adverse parental modification order.
  • Logistics company obtains pre-appearance dismissal from tort action in U.S. federal courtJones Day represented a logistics company in a civil tort dispute in federal court. The plaintiff alleged the carrier was tortiously liable for the transportation of substances that harmed the plaintiff. Jones Day and local counsel negotiated the carrier's dismissal.
  • Notre Dame obtains reversal and complete victory in suit by fired tenured professorIn the U.S. Court of Appeals for the Seventh Circuit, Jones Day secured a unanimous complete victory for the University of Notre Dame du Lac in a suit by a tenured professor, Oliver Collins, who challenged on several grounds his removal for having misused grant money.
  • NPR obtains government disclosure and attorney’s fees in Freedom of Information Act suitJones Day obtained a complete victory for National Public Radio Inc. (“NPR”), as well as one of its journalists, in a lawsuit challenging the U.S. Federal Emergency Management Agency’s (“FEMA”) withholding of critical information regarding the use of hundreds of millions of dollars of federal funds to purchase property throughout the country at risk of flooding or other natural disaster.
  • Fortune 40 company defends against FCA claims by former contractorJones Day represented a Fortune 40 company in defense of federal and state False Claims Act claims asserted by a former contractor in connection with a public works technology contract funded by Department of Homeland Security.
  • PAG invests in Key Safety Systems to finance acquisition of global assets of Takata CorporationJones Day represented PAG Asia Capital Ltd. and PAG Asia II LP in connection with its investment in Key Safety Systems, a subsidiary of China-based Ningbo Joyson Electronic Corporation, to finance the acquisition of substantially all of the global assets of Takata Corporation out of bankruptcy in the U.S. and Japan and certain non-bankruptcy transactions elsewhere in the world.
  • Reynolds American acquired by British American Tobacco Plc in deal valued at $49 billionJones Day advised Reynolds American Inc. ("RAI") regarding the acquisition by British American Tobacco, p.l.c. ("BAT") of 57.8 percent of the outstanding shares of RAI not owned by BAT and its affiliates in a transaction valued at $49 billion.
  • Institutional Religious Freedom Alliance’s amicus brief helps persuade Supreme Court that faith-based organizations must be allowed to compete on “equal footing” for public benefitsJones Day filed an amicus brief on behalf of a national association of faith-based organizations, urging the U.S. Supreme Court to clarify that, at least in the absence of exceptional circumstances, religiously motivated institutions may not be excluded from otherwise neutral grant programs.
  • Kaiser Gypsum and Hanson Permanente Cement file chapter 11 to permanently resolve asbestos claimsJones Day is representing Kaiser Gypsum Company and Hanson Permanente Cement in their chapter 11 cases.
  • Los Angeles County defeats third constitutional challenge to judicial benefitsJones Day represented Los Angeles County ("County") in a closely watched case challenging the constitutionality of the County's payment of so-called "local judicial benefits" to Los Angeles Superior Court judges.
  • Religious groups urge Supreme Court to grant petition in major religious-freedom caseIn February 2016, Jones Day filed an amicus brief, on behalf of religious groups, urging the Supreme Court to review a Ninth Circuit decision that upholds a Washington State law requiring pharmacists to dispense "Plan B" prescription drugs even when doing so violates their religious beliefs.
  • Reynolds American acquires Lorillard for $27.4 billionJones Day advised Reynolds American Inc. (NYSE: RAI) in its acquisition of Lorillard, Inc. for $27.4 billion and in the related $7.1 billion divestiture to an affiliate of Imperial Tobacco Group and $4.7 billion investment by British American Tobacco, RAI's largest shareholder.
  • Client obtains complete victory in criminal and civil wiretapping mattersIn December 2012 and March 2013, Jones Day obtained summary judgment for a pre-eminent LA based entertainment firm in two cases seeking to hold the firm liable for the wiretapping activities of Hollywood celebrity private investigator Anthony Pellicano, who was retained for several cases in which the client was counsel.
  • City of Detroit's chapter 9 plan of adjustment confirmedJones Day served as lead restructuring counsel to the City of Detroit in connection with its chapter 9 bankruptcy case filed in July 2013 and its ongoing restructuring efforts.

    • The following represents experience prior to joining Jones Day.

    Conseco Financial Corp.
    Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003).
    Challenged arbitration awards on the ground that imposition of class-action arbitration violated the Federal Arbitration Act. The Supreme Court vacated the state court judgment upholding the awards, and remanded.

    Lee, Dr. Wen Ho
    Lee v. Department of Justice, 287 F. Supp. 2d 15 (D.D.C. 2003), aff’d 413 F.3d 53 (D.C. Cir. 2005).
    Successfully pursued strategy to obtain reporters’ source information in Privacy Act suit over leaks to the media by U.S. officials. Dr. Lee, a former nuclear physicist at Los Alamos National Laboratory, eventually obtained a landmark settlement after the reporters’ appeal failed.

    Trulock v. Lee, 2003 WL 21267827 (4th Cir.).
    Successfully defended Dr. Lee in all stages of a federal-court defamation suit arising out of the U.S. Government’s criminal investigation of him.

    Telecommunications company
    Defended company in the arbitration of a $40 million commercial breach-of-contract claim that ended in complete victory for the client.

    United States
    Shasha v. Gonzales, 227 Fed. Appx. 436, 2007 WL 930404 (6th Cir.).
    Argued appeal in successful defense of removal order of Board of Immigration Appeals.

    The Office of Legal Counsel has made public the following opinions authored and signed by Kevin, which are available at http://www.justice.gov/olc/opinions.htm under the appropriate year:

    When a Prior Conviction Qualifies as a "Misdemeanor Crime of Domestic Violence" (May 17, 2007) (opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms, and Explosives).

    Use of Appropriated Funds to Provide Light Refreshments to Non-Federal Participants at EPA Conferences (Apr. 25, 2007) (opinion for the General Counsel, Environmental Protection Agency).

    Legality of Alternative Organ Donation Practices Under 42 U.S.C. § 274e (Mar. 28, 2007) (opinion for the General Counsel, Department of Health and Human Services).

    Applicability of the Miscellaneous Receipts Act to Personal Convenience Fees Paid to a Contractor by Attendees at Agency-Sponsored Conferences (Nov. 22, 2006) (opinion for the General Counsel, Department of Commerce).

    Application of the Government Corporation Control Act and the Miscellaneous Receipts Act to the Canadian Softwood Lumber Settlement Agreement (Aug. 22, 2006) (opinion for the General Counsel, U.S. Trade Representative).

    Proposed Amendments to Military Commission Order No. 1 (Aug. 12, 2005) (opinion for the General Counsel, Department of Defense).

    Authority Under the Defense Base Closure and Realignment Act to Close or Realign National Guard Installations Without the Consent of State Governors (Aug. 10, 2005) (opinion for the Chairman, Defense Base Closure and Realignment Commission).

    Assignment of Certain Functions Related to Military Appointments (July 28, 2005) (opinion for the General Counsel, Office of Management and Budget).

    Religious Objections to the Postal Service Oath of Office (Feb. 2, 2005) (opinion for the Vice President and General Counsel, U.S. Postal Service).

    Status of the Director of Central Intelligence under the National Security Intelligence Reform Act of 2004 (Jan. 12, 2005) (opinion for the Deputy Counsel to the President).

    Application of Record-Destruction Requirements to Information Received from the National Instant Criminal Background Check System (Jan. 11, 2005) (opinion for the Chief Counsel, Bureau of Alcohol, Tobacco, Firearms, and Explosives).

    Whether the Second Amendment Secures an Individual Right (Aug. 24, 2004) (opinion for the Attorney General).

    View All

    NOVEMBER 2024 Alert

    United States Supreme Court to Hear Two Securities Cases This Term

    July 2024 Newsletters

    U.S. Supreme Court Bankruptcy Update

    APRIL 2024 Alert

    U.S. Supreme Court Bars Liability for "Pure Omissions" Under Section 10(b) of Securities Exchange Act

    May 2023 Alert

    U.S. Supreme Court Narrows Scope of Liability Under Anti-Terrorism Act

    April 2023 Commentary

    U.S. Supreme Court Rules Appellate Protection of Bankruptcy Property Sale Is Subject to Waiver and Estoppel

    April 2021 Commentary

    Second Circuit Issues Important Anti-Terrorism Act Decision

    May 13, 2020 External Publications

    Fraudulent Inducement Actions And The FCA’s Statute Of Limitations, The Government Contractor, Vol. 62, No. 19

    January 2020 Commentary

    U.S. Supreme Court: Creditors May Immediately Appeal Denials of Automatic-Stay Relief

    May 2019 Alert

    Supreme Court Extends False Claims Act’s Statute of Limitations for Non-Intervened Suits

    June 2018 Commentary

    U.S. Supreme Court Holds SEC's Staff Appointments for Administrative Law Judge Unconstitutional
    View All

    Additional Publications

    • May 13, 2020
      Fraudulent-Inducement Actions and the FCA's Statute of Limitations, 62 The Government Contractor 133

    Additional Speaking Engagements

    • January 22, 2018
      Supreme Court Update, Jones Day CLE Academy
    • February 11, 2017
      "Justice Thomas, Liberty, and Equality," Yale Symposium on Justice Clarence Thomas' 25 Years on the Supreme Court
    • September 16, 2016
      Religious Liberty Before the Supreme Court: Trinity Lutheran Church of Columbia v. Pauley, Youtube
    • November 5, 2015
      Second Amendment Case Law Development and Challenges Ahead, Georgetown Symposium on the Right to Bear Arms
    • September 9, 2013
      Taking Aim at Violent Crime: What does the Second Amendment Tell Us?, Federal Bar Association
    • August 1, 2013
      Federalism and the Accountability & Competence of Government, presentation at the Governor's Federalism Summit
    • July 19, 2012
      The Supreme Court on the Affordable Care Act: What's Next, Cornell University School of Industrial and Labor Relations
    • June 7, 2012
      Preparing for the Supreme Court Decision on Health Reform, American Benefits Council
    • March 20, 2012
      Obamacare in the Supreme Court, National Press Club
    • May 19, 2011
      Finding Our Way In the Tort Arena, Jones Day MCLE University
    • October 22, 2010
      Political Philosophy, Law, and Executive Authority, panelist, Political Philosophy and the Constitution: A Conference in Honor of Professor Murray P. Dry
    • September 16, 2010
      Executive Roundtable Series: Targeting Consumer Products: Developments in Regulation and Litigation
    • May 20, 2010
      Advanced Business Litigation Institute: Twombly, Iqbal, and the New Heightened Pleading Standard
    • October 9, 2009
      U.S. Supreme Court Review & Preview, Jones Day San Francisco Office
    • October 10, 2008
      U.S. Supreme Court Review & Preview, Jones Day San Francisco Office
    • June 30, 2008
      "SCOTUSCast" on decision by Supreme Court in District of Columbia v. Heller, The Federalist Society for Law and Public Policy Studies
    • March 24, 2008
      "SCOTUSCast" on oral argument before Supreme Court in District of Columbia v. Heller, The Federalist Society for Law and Public Policy Studies

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