C. KevinMarshall

Partner

(T) + 1.202.879.3851

Kevin Marshall provides clients analysis, strategy, and advocacy involving novel or complex legal issues, particularly in white collar and other compliance matters and in civil litigation arising out of criminal matters or alleged fraud. This includes appeals, dispositive and other critical motions, and prelitigation analyses.

Kevin oversaw trial and appellate briefing, and argued on appeal, in the successful defense of lawsuits arising out of the wiretapping prosecution of a private investigator who had served Jones Day's clients. He also has overseen briefing of, and successfully argued, motions for R.J. Reynolds in connection with arbitration under the Federal Arbitration Act, and the partial settlement, of billion dollar disputes with states under the Master Settlement Agreement. His assistance with investigations and related litigation has included the Foreign Corrupt Practices Act, false claims acts, RICO, civil and criminal fraud, reckless manslaughter, and the intersection of products liability and bankruptcy. Kevin was part of the team representing the National Federation of Independent Business in challenging the constitutionality of the Patient Protection and Affordable Care Act before the Eleventh Circuit and U.S. Supreme Court. He also has advised on and briefed issues under the Consumer Product Safety Improvement Act (CPSIA).

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

  • 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.
  • 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.
  • Honorably discharged military veteran obtains firearm license, overcoming unlawful denial based on 30-year-old misdemeanor chargeJones Day represented an honorably discharged veteran of the United States Navy who had been permanently barred from carrying any firearm in the Commonwealth of Massachusetts due to a non-violent misdemeanor charge for the simple possession of under a half-ounce of marijuana over 30 years ago, when he was 21 years old.
  • Veteran successfully obtains firearm after attorneys establish lack of prior convictionOn August 30, 2013, Mr. Ronald Kelly, an honorably discharged United States Army veteran, successfully purchased a firearm after having been obstructed from doing so by the federal government.
  • NACDL's amicus brief in U.S. Supreme Court defends longstanding interpretation of trigger for deferential review under federal habeas-corpus lawOn behalf of the National Association of Criminal Defense Lawyers ("NACDL"), Jones Day filed an amicus curiae brief in the United States Supreme Court in a case concerning the interpretation of the Anti-Terrorism and Effective Death Penalty Act's ("AEDPA") "adjudication on the merits" requirement.
  • Religious groups support conscientious dissenters in major religious-freedom case before the U.S. Court of Appeals for the Ninth CircuitIn November 2012, Jones Day filed an amicus brief before the U.S. Court of Appeals for the Ninth Circuit on behalf of three religious groups—Church of the Lukumi Babalu Aye, Inc.; O Centro Espirita Beneficente Uniao do Vegetal, USA; and the International Society for Krishna Consciousness—that seek affirmance of the District Court’s determination that a Washington State law requiring pharmacists to dispense "Plan B" prescription drugs violated the Free Exercise Clause of the U.S. Constitution.
  • R.J. Reynolds seeks reduction in 2003 settlement paymentsJones Day represents R.J. Reynolds Tobacco Company in a pending arbitration under the 1998 Master Settlement Agreement with various U.S. States and Territories in which R.J. Reynolds and other tobacco company signatories seek an over $1 billion reduction in their 2003 settlement payments.
  • Old Carco LLC (formerly, Chrysler LLC) prevails in Second Circuit appeal by former dealers that attempted to deploy franchise laws to undo bankruptcy judge's ordersJones Day represented Old Carco (formerly, Chrysler LLC) in an historic bankruptcy proceeding that, through asset sale to Chrysler Group LLC, aimed to prevent the destruction of one of the "Big Three" U.S. automakers and an iconic American brand.
  • National Federation of Independent Business prevails in constitutional challenge to individual health-insurance mandateJones Day represented the National Federation of Independent Business ("NFIB") and other private parties in the landmark legal challenge to the Patient Protection and Affordable Care Act, based on the Act's mandate that legally compelled virtually every American to obtain health insurance.
  • Government contractor advised in investigations resulting in no charges or complaintJones Day represented a government contractor with respect to criminal and civil investigations by the United States Department of Justice, NASA, FBI, Air Force Office of Special Investigations, and the Defense Contract Management Agency (DCMA).
  • CBS affiliate, after moving to dismiss, settles wide-ranging suit over its billboard-leasing practicesJones Day represented CBS Outdoor, Inc., a subsidiary of CBS Corporation, in a suit in the Western District of Missouri that challenged CBS Outdoor's handling of applications to lease locations for billboards along the rights of way of various railroads, for whom the company acted as leasing agent.
  • 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).

    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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