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 intellectual property, bankruptcy, criminal law, data privacy and security, investment management, securities, and antitrust.
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 multiple cases in the federal courts of appeal and served as second chair at the Supreme Court.
Additionally, Jonathan represents clients in trial court proceedings across the country. He has particular experience representing mutual fund clients in cases brought under Section 36(b) of the Investment Company Act, including serving as trial counsel for an investment adviser in 2018. He has also represented clients in sensitive, high-profile investigative matters.
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, United States District Courts, federal courts of appeal, and U.S. Supreme Court, in criminal, landlord-tenant, child custody, voting 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 that may have 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.
- 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
- 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, including serving as co-counsel for oral argument, 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.
- Merck & Co, Inc. – Currently representing Merck & Co., Inc. 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. United States ex rel. Solis v. Millennium Pharms., Inc., 885 F.3d 623 (9th Cir. 2018).
- Progressive Casualty Insurance Co v. Liberty Mutual Insurance Company 625 F. App’x 552 (Fed. Cir. 2015) – Successfully represented major insurance company, including serving as co-counsel for oral argument, before the Federal Circuit in series of eight appeals from covered business method proceedings before the Patent Trial and Appeals Board.
- Filed successful amicus curiae brief in support of petition for hearing with First Circuit on behalf of the Massachusetts Association of Criminal Defense Lawyers, resulting in issuance of amended opinion remedying statement of plain error review. United States v. Bray, 849 F.3d 946, superseded and withdrawn, 853 F.3d 18 (1st Cir. 2017).
- Williams v. Lew – 819 F.3d 466 (D.C. Cir. 2016) – Represented client in connection with oral argument before D.C. Circuit in case raising novel standing issues regarding the constitutionality of the Debt Limit Statute.
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.
- 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.
- Lagayan v. Odeh, 199 F. Supp. 3d 21 (D.D.C. 2016), 318 F.R.D. 208 (D.D.C. 2016) – Represented client in a human trafficking case brought to recover damages under the Trafficking Victims Protection Act, the Fair Labor Standards Act, D.C. Minimum Wage Law, and other statutes. Defeated motion to dismiss, obtained leave to make alternative service on defendant outside of Hague Convention, and obtained confidential settlement in the middle of the principal defendant’s deposition.
- Project Vote v. Kemp, 208 F. Supp. 3d 1320 (N.D. Ga. 2016) – Successfully represented voting rights advocacy group, including conducting emergency deposition, obtaining preliminary injunctive relief requiring release certain records under the public disclosure requirements of the National Voter Registration Act of 1993, and securing confidential settlement.
- 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
- 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.
- 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)