About the Case
Meet the Attorneys

Theodore J. Boutrous, Jr.

Theodore J. Boutrous, Jr. is a partner in the Los Angeles office of Gibson, Dunn & Crutcher. He is Co-Chair of the firm’s Appellate and Constitutional Law Group and Transnational Litigation Group, as well as a member of the Crisis Management Group.  He is also a member of the firm’s Executive and Management Committees.

Mr. Boutrous has represented clients in the federal and state appellate courts throughout the nation in a wide spectrum of cases.  He has argued more than 75 appeals, including before the Supreme Court of the United States, 11 different federal circuit courts of appeals, eight different state supreme courts and a multitude of other appellate and trial courts.  He has successfully persuaded courts to overturn some of the largest jury verdicts and class actions in history.  In 2011, he successfully represented Walmart before the Supreme Court of the United States in the Dukes case, which unanimously reversed what had been the largest employment class action in history and established important standards governing class actions (Wal-Mart Stores, Inc. v. Dukes). In 2013, he successfully represented the prevailing party in obtaining a unanimous Supreme Court decision enforcing the Class Action Fairness Act (Standard Fire Insurance Co. v. Knowles).  Also in 2013, Mr. Boutrous successfully represented plaintiffs in the Supreme Court in a case invalidating California’s prohibition on same-sex marriage, Proposition 8 (Hollingsworth v. Perry).  In other ongoing constitutional litigation, Mr. Boutrous won a landmark trial victory on behalf of California schoolchildren asserting a state constitutional challenge to laws that prevent school administrators from hiring and retaining the most effective teachers (Students Matter Website). 

Mr. Boutrous also represents media organizations, reporters, and others in First Amendment matters such as reporters’ privilege battles, defamation cases, litigation seeking public access to judicial records and court proceedings, and asylum proceedings for journalists in danger.

As both a crisis management strategist and a seasoned appellate and media lawyer, Mr. Boutrous has extensive experience handling high-profile litigation, media relations and media legal issues.  He routinely advises clients in planning how to respond, and in responding, to crises and other especially significant legal problems that attract the media spotlight.  According to The National Law Journal, which in 2013 named him one of the “100 Most Influential Lawyers in America,” he “is known for his wise, strategic advice to clients in crisis and is a media law star.”

Numerous other profiles of Mr. Boutrous and his practice have appeared in the media.  Prominent mentions include: “After Chevron Win, Dole Victory Caps Big Week for Gibson Dunn,” Am Law Litigation Daily (March 9, 2014); “Practice Group Performs In Spotlight and Under Pressure,” Los Angeles Daily Journal (March 2012); “Litigator of the Week,” Am Law Litigation Daily (June 2011); “Lawyer of the Week,” The Times of London (June 2011); “Appellate Lawyer of the Week,” National Law Journal(March 2011); “Litigation Department of the Year,” The American Lawyer (January 2012); “Litigation Department of the Year,” The American Lawyer (January 2010); “He’s a Hired Gun of the Highest Caliber,” The Los Angeles Times(June 24, 2007); “Special Appeal,” Los Angeles Business Journal (July 26, 2004); and “Jackson Case Stirs First Amendment Guru,” Daily Journal Extra (February 23, 2004).

Mr. Boutrous is a Fellow of the American Academy of Appellate Lawyers. Chambers USA ranks Mr. Boutrous as a leading lawyer in five different categories, describing him as “a combination of smart and pragmatic” with “a complete command of the facts and law,” a “true innovator,” a “go-to guy on cutting-edge cases,” a “formidable litigator,” and “a hugely accomplished appellate lawyer . . . familiar with appeals at all levels and venues.”  Legal 500 has named Mr. Boutrous a “Leading Lawyer” for Supreme Court and Appellate litigation for the past three years in a row, calling him a “renowned advocate” and “the preeminent authority on punitive damages defenses in the U.S.”  In 2012, Mr. Boutrous was named an “Attorney of the Year” by both the California Lawyer and the San Francisco Recorder, and the Los Angelesand San Francisco Daily Journals named Mr. Boutrous one of the 100 best lawyers in California for the tenth year in a row.  In naming him to its list of the 500 Leading Lawyers in America, Lawdragon calls him “One of the best media and appellate attorneys in the nation.”  And the Los Angeles Business Journal describes him as “one of the nation’s most prominent appellate attorneys.”

Mr. Boutrous is a frequent commentator on legal issues.  His articles include “A First Amendment Blind Spot,” Wall Street Journal (May 27, 2014); “California Kids Go to Court to Demand a Good Education,” Wall Street Journal (January 28, 2014); "A Radical Departure on Press Freedom," Wall Street Journal (May 23, 2013);  “A Killer’s Notebook, a Reporter’s Rights,” New York Times (April 9, 2013),  “President Correa’s Libel Suit and the Fraud Against Chevron,” Forbes (March 6, 2012); “Broadcast ‘Indecency’ on Trial,” Wall Street Journal (January 17, 2012); “The Four Myths Surrounding the Common Law Reporter’s Privilege,”Media Law Resources Center (January 2007); “First Amendment on Trial,” Wall Street Journal (August 19, 2006); “What’s Next for Punitive Damage Awards,” Wall Street Journal (May 29, 1996); “Rule 6(e) and the Public’s Right to Know,” Wall Street Journal (August 17, 1998); and “Celebrity Justice: A New Double Standard,” ABA Communications Lawyer (Fall 2004).

Mr. Boutrous is a member of the Board of Directors of the International Women’s Media Foundation and the Board of Directors of the California Supreme Court Historical Society.  He also is a member of the Business Advisory Council of ProPublica, a non-profit newsroom that produces investigative journalism.

Mr. Boutrous received his law degree, summa cum laude, from the University of San Diego School of Law in 1987, where he was Valedictorian and Editor-in-Chief of the San Diego Law Review.

Marcellus Antonio McRae

Marcellus Antonio McRae is a partner in the Los Angeles office of Gibson, Dunn & Crutcher.  He is a member of the firm’s White Collar Defense and Investigations, Government Contracts, Media, Entertainment and Technology, and International Trade and Regulation Compliance Practice Groups.  Mr. McRae’s litigation and white-collar criminal defense practices focus on a wide variety of business disputes, internal investigations, and criminal prosecutions including defense of individuals and corporations in cases involving allegations of: financial fraud, false claims act violations, public corruption, violations of federal and state environmental laws, health care fraud, wrongful death, criminal antitrust violations, and other matters.  He also represents and advises employers in wrongful termination, retaliation, and whistleblower claims.

Mr. McRae has first chaired numerous jury trials, bench trials, and arbitrations in both federal and state courts.  He also writes and speaks on trial and litigation skills, white-collar criminal defense, labor and employment law, and other topics.  From 1995 until joining Gibson, Dunn & Crutcher in February 1998, Mr. McRae served as an Assistant United States Attorney with the Criminal Division, Major Frauds Section, of the United States Attorney’s Office in Los Angeles.  While he was an Assistant United States Attorney, Mr. McRae investigated and prosecuted complex white-collar crimes (tax, securities, bankruptcy, and other business frauds) and traditional crimes that involved both jury and non-jury trial experience with a 100 percent conviction rate at trial.  He also drafted numerous appellate briefs filed in the Ninth Circuit Court of Appeals and had several arguments before the Ninth Circuit Court of Appeals.  Prior to joining the United States Attorney’s Office, Mr. McRae was an associate with Debevoise & Plimpton.

Some of Mr. McRae’s achievements include:

Trials and Litigation

  • Successfully represented as co-lead trial counsel California schoolchildren in Vegara v. State of California in asserting a state constitutional challenge to laws that prevent school administrators from hiring and retaining the most effective teachers (Students Matter Website).

  • Successful defense at trial of Vestin Realty Mortgage I and II in a nationwide class action alleging that the merger of funds into the trusts constituted a “roll up.”

  • Successful defense of Nutro Products, Inc. in an eight-week jury trial in a mass action in which homeowners claimed that the company’s production facility emitted a nuisance odor.

  • Defending major corporations in qui tam litigations and parallel proceedings involving False Claims Act violation allegations.

  • Representation of an I.R.A. administrator in a class action against claims that it aided and abetted a fraud against investors.

  • Representation of Pacific Maritime Association and members in a federal court action involving claims of gender and race discrimination, harassment and retaliation.

  • Successful defense of Dean Witter Reynolds, Inc. in a jury trial against allegations that it defrauded California Union Insurance Company into issuing performance and property coverage on several wind turbine farms.

  • Successful defense at trial of a film and television celebrity in a palimony action.

  • Representation of Deloitte & Touche LLP in a state court action involving allegations of age and race discrimination.

  • Successful defense of ITT Educational Services in a False Claims Act retaliatory discharge action both at the trial level by obtaining summary judgment and at the appellate level by securing affirmance of the summary judgment ruling.

  • Representation of PricewaterhouseCoopers in a state court action involving allegations of gender discrimination and failure to promote.

  • Representation of United Parcel Service in a state court action involving allegations of sexual harassment.

  • Successful defense of one of the world’s leading media and entertainment companies in a three-week arbitration involving claims for profit participation in a syndicated series.

  • Represented clients in an appeal of an Unruh Act judgment in which the appellate court reversed the award of punitive damages and the attorneys’ fees award.

  • Successful defense of ConAgra Foods, Inc. in a four-week jury trial involving breach of contract and fraud claims arising from the termination of a beef distribution relationship.

  • Represented one of the leading watch manufacturers and one of the world’s largest retailers in a federal trademark infringement litigation.

White Collar Defense and Investigations

  • Counseled multinational corporations in various aspects of the Foreign Corrupt Practices Act.

  • Represented domestic and international clients in export control enforcement matters and investigations.

  • Represented major corporations in federal grand jury investigations involving contract and payment disputes with various regulatory agencies.

  • Defended a municipality in a federal criminal investigation alleging Clean Water Act violations.No charges were filed.

  • Defended retailers in civil class action and criminal proceedings involving pricing accuracy claims.

  • Defended an elected official in a public corruption investigation.No charges were filed.

  • Defended food and beverage manufacturers in federal criminal investigations alleging Clean Water Act violations.

  • Defended a maritime company in a federal criminal investigation alleging violations of the Act to Prevent Pollution from Ships.No charges were filed.

  • Conducted a wide range of internal investigations concerning financial controls and procedures, executive misconduct, government contracting improprieties, and alleged violations of federal election campaign laws, federal communications commission rules and regulations, kickbacks, fraud, and other federal and state laws.

Professional and Community Associations

Mr. McRae is currently a member of the Pacific Council on International Policy; the Board of Advocates of Human Rights First; and on the Boards of Directors of Public Counsel and Big Brothers Big Sisters.  He was also a Deputy General Counsel to the Citizens’ Commission on Jail Violence for the County of Los Angeles.  Mr. McRae was Co-Chair from 2003-04 of the Lawyer Delegates to the Ninth Circuit - Central District of California.  He is also a former Co-Chair of the firm’s White Collar Defense and Investigations Practice Group.  He has served as an adjunct professor of Advanced Trial Advocacy at Loyola Law School, teaches trial advocacy at Harvard Law School, and was an instructor at the national level for the National Institute of Trial Advocacy.  Mr. McRae has conducted mock jury trial demonstrations at numerous national American Law Institute-American Bar Association conferences and has been a featured panelist at many professional seminars regarding a wide range of topics including trial advocacy, individual and corporate criminal defense, federal sentencing guidelines, and employment litigation.  He also frequently appears on television and radio and in print media as a legal commentator.  Mr. McRae is currently a member of the Board of Trustees of the Los Angeles County Bar Association.  He has also been a chair of the Environmental Crimes Committee for the West Coast Chapter of the American Bar Association and is a former member of the Board of Directors of the Federal Bar Association; the Executive Committee of the Criminal Justice Section of the Los Angeles County Bar Association; the Attorney Discipline Committee for the Central District of California; the Attorney Admissions Fund Board for the Central District of California; the Steering Committee of the California Minority Counsel Program; and the LAPD Police Commission Rampart Review Panel.

Speaking Engagements

  • Presentation to California School Boards Association, discussing the Vergara Case, San Francisco, CA, December 15, 2014

  • Presentation to California Association of Suburban School Districts, discussing the Vergara Case, San Francisco, CA, December 14, 2014

  • Presentation to the National Association of Black Educators, discussing the Vergara Case, Kansas City, MO, November 20, 2014

  • “Plaintiff attorney in the landmark Vergara case in Twin Cities to talk about teacher tenure,” Star Tribune, November 14, 2014

  • Phi Delta Kappa – USC Chapter Dinner, discussing theVergara Case, Los Angeles, October 10, 2014

  • “Affirming the Fundamental, Constitutional Right of Every Student to Learn from Effective Teachers and Have an Equal Opportunity to Succeed in School,” Glendale Bar Association Dinner Meeting, October 1, 2014

  • “Getting the Best Education for All Our Kids: The Lawsuits That Could Transform American Public Schools,” panel, The Aspen Institute, Justice & Society Program, Washington, D.C., September 30, 2014

  • “Central African Republic and the Responsibility to Protect” panel, Pacific Council on International Policy, September 23, 2014

  • “Learning About Vergara, Part 1: The Plaintiff’s Perspective,” The Education & Law Society, University of California Los Angeles, September 22, 2014

  • The New Teacher Project Conference Panel, Atlanta, GA, September 18, 2014

  • “Tenure on Trial,” Pomona Student Union, Pomona College, September 8, 2014

  • Marcellus McRae, Interview with LaDona Harvey, KOGO Radio, discussing the Vegara case, September 4, 2014

  • “Deposition Strategies in Employment Litigation: Taking and Defending Depositions of Plaintiffs and Fact Witnesses,” Strafford Webinars, August 13, 2014

  • “Cross-Examination of Experts,” Institute of Commercial Forensic Practitioners, Emperor’s Palace, Centurion, South Africa, July 22, 2014

  • “Taking on Teachers by Targeting Tenure,” Interview with Melissa Harris-Perry, MSNBC, June 15, 2014

  • NBC News Conference, KNBC, discussing Students Matter case, June 15, 2014

  • “Best Practices in the Use of Witness Statements” panel, ABA International Bar Association-Africa Committee, Washington, D.C., June 3, 2014

  • Marcellus McRae, Interview with LaDona Harvey, KOGO Radio, discussing Students Matter case, April 30, 2014

  • “Success Stories and Progress in Africa’s Anti-Corruption Efforts: Taking Stock and Moving Forward,” American Bar Association Section of International Law 2014 Spring Meeting, New York, NY, April 4, 2014

  • Students Matter Ruling with Marcellus McRae, The Roger Hedgecock Show, U-T-TV, December 18, 2013

  • “Differing Perspectives on Education Reform,” Youth and Education Advocates at Stanford, Shaking the Foundations 2013, November 1, 2013

  • “Deposition Strategies in Employment Litigation,” Strafford Webinars, October 29, 2013

  • UCLA Education Litigation Panel, September 18, 2013

  • “U.S. Foreign Corrupt Practices Act Enforcement and the Guidelines Recently Issued Jointly by the SEC and DOJ,” Thirty-First International Symposium on Economic Crime, September 4, 2013

  • “Case Assessment and Evaluation – Developing Informed Estimates,” Defense Research Institute, Let’s Talk Series, August 15, 2013

  • Teaching Lawyers Without Borders – Anti-Corruption and Trial Advocacy Training in Kenya, August 5-9, 2013

  • “Setting the benchmark:LIBOR and the Upswing in International Financial Services and Securities Fraud Investigations and Prosecutions,” 16th Annual Transnational Crime Conference, International Bar Association, May 16, 2013

  • “Developing Informed Litigation Budgets,” Practical Law Company Webinar, May 8, 2013

  • “FCPA Concepts and Considerations,” Los Angeles County Bar Association Corporate Roundtable Dinner, March 13, 2013

  • “Deposition Strategies in Employment Litigation,” Strafford Publications Webinar, November 13, 2012

  • “In-house Counsel’s Guide to Trial Prep,” Practical Law Company Webinar, November 6, 2012

  • “Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System,” Human Rights First, Public Dialogues Series, September 24, 2012

  • “Former Employees and Executives as Non-Party Witnesses,” Strafford Publications Webinar, September 5, 2012

  • “2012 Mid-Year OFAC Update,” Gibson Dunn Webcast, July 10, 2012

  • “One Nation Under Arrest? The Growth of Federal Criminal Law,” The Federalist Society, Los Angeles Chapter, April 24, 2012

  • “Ethics Surrounding Attorneys’ Fees: How to Agree to Them, Collect Them, Keep Them, and Persuasively Seek Them as Sanctions,” ABA Section of Litigation Annual Conference, April 20, 2012

  • “Learn What Matters in Federal Court: Hear from the Decision makers,” Public Counsel/Los Angeles County Bar Association Barristers’ CLE program, panel entitled “How to Win Summary Judgment,” February 24, 2012

  • “To Arbitrate or Not?” Bridgeport Continuing Education Seminar, January 13, 2012

  • “2011 Year-End OFAC Update,” Gibson Dunn Webcast, January 12, 2012

  • “Deposition Strategies in Employment Litigation,” Strafford Publications Webinar, November 22, 2011

  • “Former Employees and Executives as Non-Party Witnesses:  Navigating the Complexities of Privilege, Compensation, Cooperation with Counsel and Protection of Business Information,” Strafford Publications Webinar, October 11, 2011  

  • “Elements of An Effective Compliance Program,” Annual Conference of the African Legal Network, November 22, 2005

Publications and Acknowledgments

Mr. McRae has been recognized in such publications as The Best Lawyers in America®.  California Lawyer featured him as one of its honorees in its 2014 California Lawyer Attorney of the Year Awards. He was named to the Daily Journal’s list of “Top 100 Lawyers in California” for 2014.  He was also named to the Daily Journal’s “Top 20 California Attorneys Under 40” in 2003.  In January 2004, Mr. McRae was selected by Law & Politics magazine as one of California’s “Superlawyers” in the area of Business Litigation, based on a survey of more than 65,000 California lawyers.  He was named in 2006 among the “New Stars, New Worlds” by Lawdragon magazine, which features up-and-coming talent and lawyers with fascinating new practices.  Mr. McRae has also authored and co-authored several articles including “Case Assessment and Evaluation” 2013 Practical Law Company, Handling Federal Litigation: An Overview 2011 Practical Law Company; “Africa – 2013 Legal Developments,” published byAfrica Law Today, Issue 1 (2014), a publication of the ABA Section of International Law; “State and Commerce Departments publish significant rule changes to export controls regulations,” published by Lexology  in 2013; “Scope of Employment,” published by Los Angeles Lawyer in 2013; “Proof Matrix” (a tool to help assess whether a case is ready for trial), published by Practical Law Company in December 2012 (http://us.practicallaw.com/5-522-5426); “Your Witness: The Issue of Paying Fact Witnesses Most Commonly Concerns Former or Current Employees of a Party in Litigation,” published by Los Angeles Lawyer in 2012; “Handling Federal Litigation,” published by Practical Law Company in 2011; “Is Government Knowledge a Defense to False Claims Liability: A Discussion of the Role of Government Knowledge Under the California and Federal False Claims Acts,” published by BNA, Inc.Federal Contracts Report, Volume 84, No. 11, September 27, 2005; “Gauging Organizational Exposure to Environmental Criminal Liability: A Comparison of the Proposed Environmental Sentencing Guidelines to the Organizational Guidelines and the Department of Justice’s Revised Principles of Federal Prosecution of Business Organizations,” published by theAmerican Bar Association for the National Institute on White Collar Crime in March 2004; “Proof and Pretext: ReevesProvides Some Clarification of the Burden-Shifting Formula in Employment Discrimination Lawsuits,” published by theLos Angeles Lawyer in March 2004; “Seeking and Defeating Summary Judgment in Light of Reeves v.  Sanderson Plumbing Products And Its Progeny” which was published in the ALI-ABA Course of Study-Employment Discrimination and Civil Rights Actions in Federal and State Courts, Volume 1 in May 2003; and “Grace Under Pressure: Fifteen Steps You Should Take to Manage a Search of Your Client’s Office Pursuant to a Federal Warrant“ published in the Corporate Counsel’s Quarterly and The Lawyer’s Brief, Volume 18, No. 3 in July 2002.  He is also the co-author of “Closing Arguments,” Chapter 37, Business and Commercial Litigation Treatise, West Publishing, 1998.

Mr. McRae received his law degree from Harvard Law School in 1988.  He earned a B.A. degree summa cum laude in 1985 from the University of California at Los Angeles, where he was elected to Phi Beta Kappa.

Joshua S. Lipshutz

Joshua S. Lipshutz is a partner in the San Francisco office of Gibson, Dunn & Crutcher.  He currently practices in the firm’s Litigation Department and its Appellate and Constitutional Law Practice Group.

Mr. Lipshutz is experienced in representing clients before the Supreme Court of the United States, the Ninth Circuit Court of Appeals, and other state and federal appellate courts. He also has served as post-trial counsel in several state and federal courts, where he has obtained new trials and other relief from adverse verdicts. Recent appellate matters include:

  • Daimler AG v. Bauman (U.S. Supreme Court): Whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based on the in-State activities of a corporate subsidiary.
  • The Standard Fire Insurance Co. v. Knowles (U.S. Supreme Court):  Whether a putative class action plaintiff can stipulate to keep classwide damages below the federal jurisdictional threshold under the Class Action Fairness Act (“CAFA”).
  • Hollingsworth v. Perry (U.S. Supreme Court and Ninth Circuit):  Whether a state law prohibiting same-sex marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution.
  • Gabelli v. Securities & Exchange Commission (U.S. Supreme Court amicus brief):  Whether the government can bring a securities enforcement action more than five years after the claims accrued.
  • U.S. Department of Health & Human Services v. Florida(U.S. Supreme Court amicus brief):  Whether the minimum coverage provision of the Patient Protection and Affordable Care Act exceeds Congress’s powers under the Commerce Clause of the U.S. Constitution.
  • McDonald v. City of Chicago (U.S. Supreme Court):  Whether state and local handgun bans violate the Second Amendment of the U.S. Constitution.
  • Vergara v. California (California Court of Appeal): Whether state tenure laws that prevent school administrators from hiring and retaining the most effective teachers violate students' fundamental right to education under the California Constitution.

Mr. Lipshutz also maintains an active securities litigation practice. In recent matters, he has secured the dismissal of claims against the Financial Industry Regulatory Authority ("FINRA"), private equity firm Lone Star Funds, and other financial services clients. Mr. Lipshutz has represented financial services firms and other corporate clients in shareholder derivative and securities fraud actions under Delaware, New York and California law, the federal Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Company Act of 1940. Mr. Lipshutz has also successfully represented individuals pro bono in immigration matters.

Mr. Lipshutz served as a judicial clerk to the Honorable Alex Kozinksi of the United States Court of Appeals for the Ninth Circuit and to the Honorable Antonin Scalia of the Supreme Court of the United States. He graduated Order of the Coif from Stanford Law School, where he was Senior Articles Editor of the Stanford Law Review. He received his undergraduate degrees, summa cum laude, in finance and systems engineering from the University of Pennsylvania. Before practicing law, Mr. Lipshutz worked as a principal investment professional at Silver Lake Partners and as an investment banking associate at Goldman, Sachs & Co.

Mr. Lipshutz is admitted to practice law in the State of California and the Commonwealth of Massachusetts. 

Joanna Powell

Ms. Powell is an associate in the San Francisco office of Gibson, Dunn & Crutcher. She currently practices in the firm’s Litigation Department.

Ms. Powell is a member of the Gibson Dunn team representing the plaintiffs in Vergara v. California, a lawsuit brought by California public school students challenging five state statutes that entrench grossly ineffective teachers in the public school system. Plaintiffs allege that these statutes, which impinge students’ fundamental right to education and have a disproportionate impact on low-income and minority students, violate their equal protection rights under the California Constitution.

Ms. Powell graduated in 2013 from New York University School of Law, where she was the Teach For America/Dewey & LeBoeuf Emerging Leader Scholar. She also served as Managing Editor of the N.Y.U. Review of Law & Social Change, Chair of the Education Law & Policy Society, and Musical Director of both Substantial Performance, the law school a cappella group, and Law Revue.

Prior to attending law school, Ms. Powell taught second grade in the Bronx through Teach For America. She received her Bachelor of Arts degree cum laude from Yale University, where she studied Political Science and graduated with honors in the major.

Ms. Powell is admitted to practice in the State of California. She is also a member of the bar of the Northern and Central Districts of California

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