Arthur F. Fergenson
Arthur Fergenson litigates. Over the course of 40 years as a lawyer, he has taught law students at two major state universities, clerked in the federal system at both the district court level and for the Chief Justice of the United States, served as general counsel of a federal Executive Branch agency, prosecuted narcotics crimes for the government in a United States Attorney’s Office, litigated a broad range of civil matters before state and federal courts, including the United states Supreme Court, and agencies and arbitration panels across the country, and represented clients in federal grand jury investigations. As do all lawyers of Ansa Assuncao, Mr. Fergenson tries cases and conducts hearings, where facts are decided and judgments and awards are entered, and pursues and defends appeals where those judgments and awards are under challenge.
Mr. Fergenson graduated from Dartmouth College with a degree in Drama, summa cum laude, and as a junior year Phi Beta Kappa electee. After receiving his J.D. from Yale Law School, he served as law clerk to the Honorable Thomas P. Griesa upon his appointment as a United States District Judge for the Southern District of New York.
Mr. Fergenson joined the New York bar, and remains a member, as well as a member of the bars of the Southern and Eastern Districts of New York and the Second Circuit Court of Appeals. Following his trial court clerkship, Mr. Fergenson was chosen by Chief Justice Warren E. Burger to be one of his law clerks during the October 1973 Term of Supreme Court of the United States.
After clerking, Mr. Fergenson associated himself with Covington & Burling in Washington, D.C., whose bar he also joined and remains a member of, along with bars of the federal courts of that district. While at Covington, Mr. Fergenson was part of the small team that challenged the constitutionality of federal campaign legislation ultimately resulting in the landmark decision that invalidated key limitations on the free speech rights of Americans. After teaching corporate law, federal jurisdiction, and intellectual property at Indiana University Law School at Bloomington and University of Maryland School of Law at Baltimore, he was named General Counsel of the ACTION Agency. Mr. Fergenson returned to Baltimore to serve as a federal prosecutor in the narcotics unit, but was also responsible for civil forfeitures and the prosecution of other offenses, including a violation of the Arms Export Control Act involving Iran. Mr. Fergenson also joined the Maryland bar and the bars of its federal courts, and remains a member of each to this day.
Mr. Fergenson re-entered private practice in 1985, and joined Ansa Assuncao after practicing at Weinberg and Green (now Saul Ewing), Ballard Spahr Andrews & Ingersoll, and DLA Piper, where he was co-head of its appellate practice. During this period, he litigated complex civil cases, large and small, throughout the country. He was counsel to major stakeholders in two of the three largest life insurance insolvencies in our country’s history with billions of dollars of total claims at risk: Executive Life (litigated in California state court) and Confederation Life (in Michigan state court). See, e.g., Texas Commerce Bank v. Garamendi, 11 Cal. App. 4th 460 (Ct. App., 2d Dist. 1992); Commercial Nat’l Bank v. Superior Court, 14 Cal. App. 4th 393 (Ct. App., 2d Dist. 1993). He also helped a client pursue a major claim for insolvency loss against a state guaranty association.
In February 2011, Mr. Fergenson, as counsel of record, argued a major constitutional case before the United States Supreme Court. The issue is of major consequence to businesses: what are sufficient contacts with a state that would permit you to be sued in its courts. The Supreme Court had not considered this issue for nearly a quarter century before taking this case on the petition filed by Mr. Fergenson and the other members of the Ansa Assuncao team: J. McIntyre Machinery v. Nicastro, No. 09-1343. The Supreme Court held, six to three, that it was unconstitutional to force Mr. Fergenson’s client to defend a product liability tort action in New Jersey when the client had taken no action in that state and directed no activity toward that state.
Mr. Fergenson represented a major international company in a series of cases to protect its contract rights after the dot.com collapse. In one such case before a federal jury in New York, Mr. Fergenson pierced the corporate veil to hold an investment adviser liable for the wrongdoing of a portfolio company of the fund that the adviser ran; the portfolio company had contracted with Mr. Fergenson’s client and had breached, but the portfolio company was insolvent. Mr. Fergenson defended the judgment successfully in the Second Circuit, domesticated the verdict in the home state of the investment adviser, and pursued the judgment debtor through bankruptcy to an ultimate recovery.
Over the years, Mr. Fergenson has taken securities arbitrations to award, arbitrated commercial disputes, litigated arbitrability issues before federal courts, and brought a proxy solicitation challenge in Delaware Chancery Court. After a day and a half of depositions in the latter case, Mr. Fergenson’s clients were ceded a complete victory by settlement. In the intellectual property arena, Mr. Fergenson has litigated patent claims in federal court and before the International Trade Commission, litigated trademark claims in federal and state courts, and copyright claims in federal courts. He obtained a complete dismissal of all claims against a government contractor in a suit under the national flood insurance program. Mr. Fergenson also obtained a contempt citation against a major federal agency for a violation of a federal court order to preserve documents sought under the Freedom of Information Act.
Throughout his career, Mr. Fergenson has created leverage for his clients through the combination of zealous advocacy with creative, even novel, application of the law. In one case, Mr. Fergenson put at risk a major financial industry product in order to advance the position of his client. In another, he did the same by challenging the right to recover of a host of state municipalities. He used an obscure legal doctrine to move a trademark case from federal court to a state court sitting in the same town as the client. He created a constitutional theory under the due process clause to sue a state for regulating a company in a way that put it under a conflicting obligation to another state. He identified a constitutional issue that allowed a case that had been lost on appeal to nevertheless be won in a complete victory for his client. He used the utter disregard of appellate rules by opposing appellate counsel to sow doubts in an appellate panel that ruled unanimously for his client, overturning a coverage ruling by the lower court, and placed in the ruling a rare rebuke of opposing counsel.
In his practice, Mr. Fergenson follows several precepts. First and foremost, he adheres to the principle that a commercial litigation is an asset or liability owned by the client, and nothing more. His responsibility is to maximize the asset and minimize the liability, and place each case in the best posture for the client to realize its gain or close out its loss, on the client’s timetable and at the client’s decision, not his. Mr. Fergenson believes that a client not only needs a skilled lawyer, but the leverage to settle to greatest advantage that arises only from a credible threat that the client is prepared to try a case that does not settle. Only a lawyer who has tried cases, affiliated with a firm whose lawyers try cases, can bring that leverage. A commercial litigant who enters the arena without a trial lawyer at its side has unilaterally disarmed. This is why Mr. Fergenson has joined Ansa Assuncao.
Mr. Fergenson is rated AV by Martindale-Hubbell. He is named a Maryland SuperLawyer for 2012.
Areas of Practice
- National Trial Practice
- Appellate Practice
- 95% of Practice Devoted to Litigation
- Maryland, 1985
- District of Columbia, 1975
- New York, 1973
- U.S. District Court Eastern District of New York, 1988
- U.S. District Court Southern District of New York, 1973
- U.S. District Court of the District of Columbia, 1975
- U.S. District Court District of Maryland, 1984
- U.S. Court of Appeals 2nd Circuit, 1975
- U.S. Court of Appeals 4th Circuit, 1984
- Yale Law School, New Haven, Connecticut
- J.D. - 1972
- Dartmouth College, Hanover, New Hampshire
- B.A. (Summa Cum Laude) - 1969
- Major: Drama
- Texas Commerce Bank v. Garamendi, 11 Cal. App. 4th 460 (Ct. App., 2d Dist. 1992) (CA Court of Appeal, Second District 1992)
- Commercial Nat’l Bank v. Superior Court, 14 Cal. App. 4th 393 (Ct. App., 2d Dist. 1993) (CA Court of Appeal, Second District 1993)
- J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. _ (2011) (US Supreme Court 2011)
- J.C. Penney Life Ins. Co. v. Pelosi, 393 F.3d 396 (2004) (US Court of Appeals, 3d Cir. 2004)
- Vigilant Ins. Co. v. Bear Stearns Cos. Inc., 2008 NY LEXIS 542 (NY March 13, 2008) (NY Court of Appeals 2008)
- Buckley v. Valeo, 519 F.2d 821 (DC Cir. 1975); 401 F.Supp. 1235 ((USDC DC 1975) (USCA DC Circuit and USDC USDC 1975)
- Moffett v. Computer Sciences Corp., 457 F.Supp.2d 571 (D.Md. 2006) (US Dist Court for Dist of MD 2006)
- Corporate law, federal jurisdiction, and intellectual property, Indiana University Law School at Bloomington, 1976 - 1979
- Corporate law, federal jurisdiction, and intellectual property, University of Maryland School of Law at Baltimore, 1979 - 1981
Honors and Awards
- Rated “AV” by the Martindale-Hubbell Law Directory, 1989 - 2012
- Maryland SuperLawyer, 2012
Professional Associations and Memberships
- Atlantic Legal Foundation, Advisory Board
- American Bar Association, Business Law Section, Editorial Board
Past Employment Positions
- DLA Piper, Partner, 2001 - 2008
- Ballard Spahr Andrews & Ingersoll, Of Counsel, 1995 - 2001
- Weinberg and Green (now Saul Ewing), General Partner, 1985 - 1995
- U.S. Attorneys Office, Maryland, Federal Prosecutor, 1983 - 1985
- ACTION Agency, General Counsel, 1981 - 1982
- Chief Justice Warren E. Burger, U.S. Supreme Court, Law Clerk, 1973 - 1974
- Honorable Thomas P. Griesa, U.S. District Court for the Southern District of New York, Law Clerk, 1972 - 1973
- University of Maryland School of Law (Baltimore), Associate Professor, 1979 - 1981
- Indiana University School of Law (Bloomington), Assistant Professor, 1976 - 1979
Pro Bono Activities
- Trustee, CenterStage, Baltimore MD, 1987 - 2006
- Member, Editor in Chief, and Co-Chair, Business Law Today, Business Law Section of the ABA, 2001 - 2011