Joshua S. Lipshutz is a partner in the Washington, D.C. and San Francisco offices of Gibson, Dunn & Crutcher. He currently practices in the firm’s Litigation Department, its Appellate and Constitutional Law Practice Group, and its Class Actions Practice Group. In 2015, Law360 selected Mr. Lipshutz as one of six "Rising Star" appellate attorneys under 40 to watch nationwide. In 2016, the San Francisco Business Times named Mr. Lipshutz to its "40 Under 40" list. In 2017, US Legal 500 named Mr. Lipshutz a Next Generation Lawyer for labor and employment disputes.
Mr. Lipshutz’s practice focuses primarily on constitutional, class action, and securities-related appellate matters. He has represented clients before the Supreme Court of the United States, the Ninth Circuit Court of Appeals, the California Supreme Court, the Delaware Supreme Court, and other state and federal appellate courts. In addition, Mr. Lipshutz has served as an integral member of several trial teams in California, Delaware, Texas, Massachusetts, and Ireland. Recent and ongoing matters include:
- Uber Technologies, Inc.: Mr. Lipshutz represents Uber in a series of putative class actions asserting, among other things, that Uber has misclassified drivers as independent contractors. These cases span state and federal courts across the country, including the Northern District of California, Southern District of New York, California Court of Appeal, and the Second Circuit, Third Circuit, Sixth Circuit, Ninth Circuit, and Eleventh Circuit Courts of Appeals. To date, Mr. Lipshutz has secured victories in the Second, Ninth and Eleventh Circuits, enforcing Uber’s arbitration agreements and preventing class certification.
- Facebook, Inc.: Mr. Lipshutz is lead U.S. counsel in litigation against the Irish Data Protection Commissioner and Austrian privacy activist Max Schrems, in which Facebook is defending the legality of the mechanisms on which many companies rely when transferring users’ personal data from the European Union to the United States and elsewhere. He is advising on issues of U.S. constitutional law, data privacy law, and national security law, and was an integral member of the team that litigated a month-long trial in Dublin regarding the adequacy of the U.S. legal system under the EU Charter of Fundamental Rights.
- Liberty Mutual: Mr. Lipshutz was lead appellate counsel in a putative class action alleging violations of Washington insurance law. The key issues on appeal are whether the class action was removable to federal court on the basis of federal question jurisdiction, and whether the district court order remanding the case back to state court is reviewable on appeal under the Class Action Fairness Act. Mr. Lipshutz achieved a victory in the Ninth Circuit, reversing the district court’s fee award and getting the removal declared to be timely.
- Covenant Transportation: Mr. Lipshutz has twice served as appellate counsel on matters for Covenant Transportation. In the first matter, he secured a significant remittitur of a jury award in the District of Arizona and then successfully defended the remittitur in the Ninth Circuit. In the second matter, he convinced the Sixth Circuit Court of Appeals to reverse a summary judgment order against the company on the basis of Carmack Amendment preemption, and is now litigating the case on remand to the Southern District of Ohio.
- BorgWarner Morse TEC Inc.: Mr. Lipshutz obtained reversal in the California Court of Appeal of a $32.5 million punitive damages award against automotive parts manufacturer BorgWarner Morse TEC, which if left standing would have been the third largest punitive damages award in California history. The decision won the Daily Journal’s award for Top Appellate Reversal of 2015.
- ev3, Inc.: Mr. Lipshutz served on the appellate team that secured Delaware Supreme Court reversal of a $250 million jury award against Covidien subsidiary ev3, Inc. The Delaware Supreme Court found that the jury’s award was the result of improper jury instructions following the trial court’s erroneous interpretation of a merger agreement under Delaware law, and vacated the award in its entirety.
Other notable appellate representations include the following:
- Daimler AG v. Bauman (U.S. Supreme Court): Secured a unanimous victory for Daimler in a case setting new limitations on the jurisdiction of U.S. courts over foreign corporations.
- The Standard Fire Insurance Co. v. Knowles (U.S. Supreme Court): Obtained a unanimous victory in the first Supreme Court decision to interpret the jurisdictional limits of the Class Action Fairness Act.
- Hollingsworth v. Perry (U.S. Supreme Court and Ninth Circuit): Restored marriage equality to California in a historic decision striking down California’s ban on same-sex marriage, Proposition 8, as unconstitutional.
- Vergara v. California (California Supreme Court): Served as one of the principal trial attorneys winning a landmark trial ruling that California’s teacher tenure laws violate students’ fundamental right to education under the California Constitution. Although the ruling was subsequently reversed on appeal, it has played a significant role in shifting public opinion and altering public policy and legislative debates regarding teacher tenure all over the country. The Vergara trial verdict was featured on the front page of every major newspaper in the country, and Mr. Lipshutz’s work on Vergara was featured in the August 2015 cover story of California Lawyer magazine.
Mr. Lipshutz also maintains an active securities litigation practice. Mr. Lipshutz has represented financial services firms and other corporate clients in shareholder derivative, securities fraud, and appraisal 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 served as a judicial clerk to the Honorable Antonin Scalia of the Supreme Court of the United States and the Honorable Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. 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, the District of Columbia, and the Commonwealth of Massachusetts.