James A. McKee

Partner

Overview

James McKee is a partner and litigation lawyer with Foley & Lardner LLP. Mr. McKee’s practice is concentrated primarily in the areas of complex commercial litigation, constitutional law, appellate law, regulatory matters, marijuana/cannabis law and litigation, governmental procurement, administrative rule challenges, and Sunshine Law and public records disputes. He is a member of the firm’s Business Litigation & Dispute Resolution and Appellate Practices.

Commercial and Administrative Litigation

Mr. McKee represents clients in a variety of matters before state and federal trial and appellate courts, as well as administrative tribunals. In addition, Mr. McKee represents clients in numerous aspects before governmental agencies.

Mr. McKee has appeared in numerous administrative proceedings, representing a wide variety of clients before state agencies in numerous procurement challenges, administrative rule challenges, and challenges to agency action.

Appellate Representation

Mr. McKee has appeared in more than 80 Florida appellate proceedings representing clients throughout all of Florida’s District Courts of Appeal and the Florida Supreme Court. Mr. McKee has additionally represented clients before the United States Supreme Court and the Eleventh Circuit Court of Appeals.

Cannabis Regulation and Litigation

The cannabis industry is rapidly expanding throughout the nation and the sale of cannabis has been legalized in numerous states. Mr. McKee guided one of Florida’s first licensed medical marijuana treatment centers through substantial litigation and the regulatory process to obtain their license and he has also assisted other entities through the licensure process. Mr. McKee’s representation of the cannabis industry extends to all aspects of such businesses, including cultivation, processing and dispensing, as well as the unique legal issues faced by such enterprises. As the legal and regulatory landscape is rapidly evolving, Mr. McKee remains in close contact with regulators and monitors statutory and administrative rulemaking developments affecting the cannabis industry.

Sunshine Law and Public Records Compliance

Mr. McKee has counseled both government agencies and private parties on Sunshine Law and public records compliance, and has successfully resolved numerous public records and Sunshine Law disputes. Additionally, he has successfully litigated public records cases both to protect records from disclosure, as well as to obtain records. Likewise, Mr. McKee has litigated and defended cases alleging Sunshine Law violations.

Prior Experience

Prior to joining Foley, Mr. McKee served as deputy counsellor to the Governor of Florida advising the Governor on matters of law and policy. He also served as a deputy solicitor general in the Office of the Attorney General, where he briefed numerous cases before the United States Supreme Court and co-chaired an oral argument before the court, and presented oral arguments before the Florida Supreme Court and various District Courts of Appeal.

Earlier in his career, Mr. McKee served as a judicial law clerk to Florida Supreme Court Justice Kenneth B. Bell, from 2003-2004.

Representative Experience

  • Successfully represented bidder in numerous challenges to Florida’s multi-billion dollar procurement of Medicaid services.
  • Obtained reversal on appeal of all counts of trial court order finding Sunshine Law and public records violations. National Council on Compensation Insurance v. Fee, 219 So. 3d 172 (Fla. 1st DCA 2017).
  • Successfully defended district court decision on review to Florida Supreme Court in case interpreting PIP statutory discovery requirements. State Farm Mutual Automobile Ins. Co. v. Shands Jacksonville Medical Center, Inc., 210 So. 3d 1224 (Fla. 2017).
  • Successfully defended forum non conveniens order on appeal involving claim brought against Italian corporation sued for claims relating to Bolivian dam project. GLF Constr. Corp. v. Credinform Int'l, S.A., 225 So. 3d 377 (Fla. 3d DCA 2017).
  • Successfully defended winning bidder against appeal challenging rejection of the incumbent losing bidder’s protest in case involving substantial state contract. AT & T Corp. v. Dep't of Mgmt. Servs., 201 So. 3d 852 (Fla. 1st DCA 2016).
  • Successfully defended on appeal $25 million fee award made to the trustees of the Robert Rauschenberg Revocable Trust. Robert Rauschenberg Found. v. Grutman, 198 So. 3d 685, 686 (Fla. 2d DCA 2016).
  • Successfully defended winning bidder against appeal challenging dismissal of the losing bidder’s protest in case involving $143 million contract. Partnership for Community Health, Inc. v. Dep’t of Children and Families and Broward Behavioral Health Coalition, Inc., Case No. 1D12-1866 (Fla. 1st DCA August 8, 2012). 
  • Obtained reversal of agency final order dismissing formal bid protest petition challenging agency decision to award a multi-year contract worth tens of millions of dollars to a competitor; On remand the agency’s decision was reversed and Pro Tech was awarded the contract. Pro Tech Monitoring, Inc. v. Dep't of Corrections, 72 So. 3d 277, 278 (Fla. 1st DCA 2011). 
  • Counsel to the State of Florida in Florida v. Georgia, an original action in the United States Supreme Court seeking an equitable apportionment of water flowing from the Apalachicola-Chattahoochee-Flint River Basin.
  • Represented the Executive Office of the Governor in Florida Supreme Court proceeding on petition for writ of quo warranto disputing governor's authority to enter into Indian gaming compact. Florida House of Representatives v. Crist, 999 So. 2d 601 (Fla. 2008).
  • Obtained reversal of order granting summary judgment in favor of the Department of Financial Services in a reinsurance contract dispute; on remand to the trial court achieved summary judgment in favor of Imagine. Imagine Insurance Co. LTD v. Department of Financial Services, 999 So. 2d 693 (Fla. 1st DCA 2008). 
  • Successfully represented the State of Florida in a case involving the tolling of statute of limitations periods under the Anti-Terrorism and Effective Death Penalty Act. Lawrence v. Florida, 127 S.Ct. 1079 (2007). 
  • Successfully represented the Florida Department of Revenue in a challenge to the constitutionality of Florida’s sales tax exemption for religious publications. Wiccan Religious Co-op. of Fla, Inc. v. Dep’t of Revenue, et. al. 944 So. 2d 233 (Fla. 2006). 
  • Successfully litigated public records case against the Florida Department of Corrections and succeeded in obtaining records alleged by the Department to be exempt from public records disclosure. MHM Correctional Services, Inc. v. Dep’t of Corrections (Leon County Circuit Court Case No. 2009-CA-2105). 
  • Successfully defended state statute recognizing right of certain individuals to carry firearms in certain circumstances against constitutional challenge. Florida Retail Federation, Inc. v. Attorney General of Florida and National Rifle Association (N.D. Fla. No. 4:08 CV 179). 
  • Represented the Florida House of Representatives against a suit seeking to enjoin operation and enforcement of Florida’s expanded lobbyist gift ban and compensation disclosure law. Florida Association of Professional Lobbyists v. Bense, et al, (N.D. Fla. No. 4:06 CV 123). 
  • Represented the Florida Department of Highway Safety and Motor Vehicles in a case seeking to prevent the Department from using hearing officers in all DUI cases. Department of Highway Safety and Motor Vehicles v. Tidey, 946 So. 2d 1223 (Fla. 4th DCA 2007).

Education

Mr. McKee received his J.D. from the University of Florida Fredric G. Levin College of Law (2002). He earned his master’s degree in accounting from the University of Florida Fisher School of Accounting (2002), and his undergraduate degree in accounting from the Florida Atlantic University (B.S, cum laude, 1999). Mr. McKee is also a certified public accountant.

Admissions

Mr. McKee is admitted to practice in the Florida Supreme Court, the United States Supreme Court, the Eleventh U.S. Circuit Court of Appeal, and the U.S. District Courts for the Northern District of Florida and the Southern District of Florida.

Representative Matters

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Successfully defended Southland Construction against a bid protest involving a $38 million contract with the Orlando-Orange County Expressway Authority. The award to Southland was challenged by the next lowest bidder, Lane Construction, who argued that Southland’s bid was late and “nonresponsive” on certain grounds. After a two-day trial, the Hearing Officer denied the protest and the Authority Board approved his Recommended Order.
Conducted in-depth analysis of constitutionality of proposed legislation for national insurance and financial services corporations.
Counseled a major international gaming corporation on Florida gaming law.