Jonathan R. Ference-Burke
Jonathan Ference-Burke represents clients in complex criminal and civil litigation and enforcement matters, including in internal investigations, trial proceedings, and appeals. He has experience with a broad range of industries, including health care, intellectual property, bankruptcy, criminal law, data privacy and security, investment management, securities, and antitrust. Jonathan has particular experience with the False Claims Act, including representing a leading drug manufacturer in a case presenting novel issues in the district court and on appeal, and in representing mutual fund clients in cases brought under Section 36(b) of the Investment Company Act.
As an appellate litigator, Jonathan has represented clients before the United States Supreme Court at the petition and merits stages, before most federal circuit courts of appeal, and in state appellate courts. He has argued and won multiple cases in the federal courts of appeal and served as second chair at the Supreme Court.
Jonathan has represented clients in trial court proceedings across the country and in sensitive, high-profile investigative matters, with particular experience in health care and private equity. In 2018, Jonathan was part of a team that successfully represented Metropolitan West Asset Management, LLC at trial, resulting in a decisive ruling rejecting the plaintiff’s claims and nine-figure damages demand.
Prior to coming to Ropes & Gray, Jonathan clerked for the Honorable Florence Y. Pan of the Superior Court of the District of Columbia; the Honorable Jan E. DuBois of the United States District Court for the Eastern District of Pennsylvania; and the Honorable Rosemary M. Collyer of the United States District Court for the District of Columbia. Jonathan has served as an adjunct professor of law at his alma mater, Georgetown University Law Center.
Jonathan maintains an active pro bono practice. He has represented clients in the District of Columbia courts, federal district courts and courts of appeal, and the U.S. Supreme Court, in criminal, landlord-tenant, child custody, civil rights, bankruptcy, human trafficking, immigration, and other matters.
Supreme Court Litigation
- Mission Product Holdings, Inc. v. Tempnology, LLC – S. Ct. No. 17-1657 – Represented debtor in Supreme Court case with significant implications for licensees under trademark license agreements when a licensor files a bankruptcy petition, including serving as second chair for oral argument.
- Bullard v. Blue Hills Bank fka Hyde Park Savings Bank – 135 S. Ct. 1686 (2015) – Successfully represented mortgagee, including serving as co-counsel before Supreme Court for oral argument, in case involving appellate jurisdiction in bankruptcy proceedings, resulting in unanimous decision in client’s favor.
- In re Energy Future Holdings Corp., 904 F.3d 298 (3d Cir. 2018), cert. denied, 139 S. Ct. 1620 (2019) – Represented Elliott Management on appeal, obtaining affirmance of reconsideration of break-up fee in the bankruptcy of Energy Future Intermediate Holdings and subsequently securing denial of petition for certiorari, resulting in substantial increase in distributions to creditors.
- Versata Development Group v. SAP – 793 F.3d 1306 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 2510 (2016) – Represented leading enterprise software provider in appellate proceedings before the Federal Circuit and U.S. Supreme Court, including securing denial of petition for writ of certiorari from landmark win for client before Federal Circuit.
- Dimaya v. Lynch – Successfully represented group of retired Article III judges as amici curiae to Supreme Court in case involving vagueness doctrine at intersection of immigration law and criminal law.
Federal Courts of Appeals
- Leading drug manufacturer – Currently representing a leading drug manufacturer in a False Claims Act case, which raises novel First Amendment issues in a case involving claims of off-label promotion. After the en banc Ninth Circuit issued an opinion abrogating the precedent relied on by the district court in dismissing the case, secured affirmance of dismissal of several key claims on alternate grounds and targeted remand on remaining claims. On remand, the district court again dismissed the case, adopting many of Ropes & Gray’s arguments. Relator has again appealed to the Ninth Circuit.
- In re Tribune Co. Fraudulent Conveyance Lit. (2d Cir.) – Representing pension fund defendants regarding creditor fraudulent conveyance claims.
- Prairie Land Millwright Services, Inc. v. Sioux Steel Co. (Fed. Cir. 2020) – Part of team that successfully defended Patent Trial and Appeal Board decision upholding validity of patent.
- Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020) – Briefed case and presented oral argument as court-appointed counsel, winning reversal of adverse summary judgment decision in opinion that abrogated precedent and set a new standard for inmate claims of sexual assault.
- Sears v. Roberts, 922 F.3d 1199 (11th Cir. 2019) – Briefed case and presented oral argument as court-appointed counsel, winning vacatur of adverse summary judgment decision.
- Nelson v. Garman (3d Cir. 2020) – As court-appointed counsel for appellant, secured confession of error after filing opening brief, resulting in Commonwealth appellees agreeing to have district court dismissal vacated and case remanded for further proceedings.
- Trial and appellate counsel in United States v. Kurt E. Mix, representing individual charged with obstruction of justice in connection with the Deepwater Horizon oil spill. Represented Mr. Mix on appeal before the Fifth Circuit on government appeal from motion granting new trial; successfully achieved unanimous precedential opinion affirming grant of new trial, 793 F.3d 603 (5th Cir. 2015). On remand, secured dismissal of all obstruction of justice charges three weeks before re-trial was scheduled to begin, resulting in no-jail time, no-fine misdemeanor plea to a violation of 18 USC § 1030(a)(5)(A).
- In re MPM Silicones, L.L.C. – 874 F.3d 787 (2d Cir. 2017) – Successfully represented trustee for secured creditors, winning reversal of bankruptcy court ruling in case establishing, as a matter of first impression, that dissenting senior creditors are entitled to a market rate of interest on future payments as part of a chapter 11 reorganization plan.
- Progressive Casualty Insurance Co v. Liberty Mutual Insurance Company 625 F. App’x 552 (Fed. Cir. 2015) – Successfully represented major insurance company before the Federal Circuit in series of eight appeals from covered business method proceedings before the Patent Trial and Appeals Board.
Trial Court Litigation
- PIMCO, Metropolitan West Asset Management, LLC, T. Rowe Price, Western Asset Management Company, and State Farm – Extensive experience representing fund advisers against claims of excessive fees under the Investment Company Act of 1940, including successfully serving as trial counsel to MetWest in 2018 bench trial.
- Represented the official committee of unsecured creditors of Sabine Oil & Gas, an independent oil and gas exploration and production company which had approximately $2.6 billion in funded debt obligations, during chapter 11 bankruptcy proceedings, including on expedited appeals to the district court and Second Circuit.
- Independent Trustees of the Calamos Investment Trust – Successfully represented independent trustees of mutual fund in connection with discovery motion that challenged whether privileged communications between independent fund trustees and their independent counsel can remain private.
- Wrongful Conviction – In case in which Ropes & Gray attorneys represented client for over 30 years, secured Alford plea, with sentence of time served, on behalf of criminal defendant in wrongful conviction matter following grant of petition for writ of actual innocence based on DNA evidence undermining homicide convictions and life sentences from trials in 1981 and 1983. Team was awarded firm-wide 2018 Pro Bono Team Award.
Internal Investigations, Privacy Matters, and Government Enforcement Matters
- Currently representing major South American airline in internal investigation of potential violations of the Foreign Corrupt Practices Act.
- Represented Independent Compliance Monitor appointed by DOJ and SEC pursuant to deferred prosecution agreement.
- Successfully represented an individual in a government investigation of potential violations of the Foreign Corrupt Practices Act.
- Government contractor - Advised and represented government contractor with respect to issues stemming from an unlawful Advanced Persistent Threat (APT) cyber-attack focused on its background investigations business for the United States government, including representing client in connection with Congressional hearings.
- Represented a U.S.-based multinational medical device company in an industry-wide Foreign Corrupt Practices Act investigation involving countries across Europe, Asia, and South America.
- Represented clients in conducting anti-corruption due diligence regarding potential transactions.
- Represented major medical device manufacturer in state investigations concerning the company’s marketing practices and relationships with physician consultants.
- Co-author, “Refocusing the Jones Analysis: New Trends in Excessive Fee Litigation,” Review of Securities & Commodities Regulation, Vol. 53, No. 11 (June 10, 2020)
- Co-author, “Justices Seem Poised To Increase Cos.' Liability Overseas,” Law360 (February 27, 2020)
- Co-author, “Strategies To Maintain Privilege In Crisis Response Scenarios,” Law360 (December 11, 2019)
- Co-author, “Anti-Terrorism Act Case Could Bring New Risks For US Cos.,” Law360 (June 21, 2019)
- Contributor, “Antitrust and the Roberts Court,” Antitrust, Vol. 28, No. 3 (Summer 2014)
- Contributor, “International Migrants’ Bill of Rights,” 24 Georgetown Immigration Law Journal 395-506 (2009-2010)
- JD, magna cum laude, Georgetown University Law Center, 2010; Order of the Coif
- BA (special major in linguistics and languages), high honors, Swarthmore College, 2007; Phi Beta Kappa