Supreme Court and Appellate Practice

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Overview

In the firm’s short history, our lawyers have argued 43 appeals before the Supreme Court of the United States, including cases involving a wide range of matters, such as arbitration, antitrust, civil RICO, communications, copyright, federal jurisdiction, federal preemption, intellectual property, securities regulation, transportation, and water rights.  We have won significant cases in that Court in each of the last nine Terms.  Our recent victories in the Supreme Court have included leading cases in areas such as antitrust (Bell Atlantic Corp. v. Twombly and Pacific Bell Telephone Co. v. linkLine Communications, Inc.), securities regulation (Amgen Inc. v. Connecticut Retirement Plans and Trust Funds and Matrixx Initiatives, Inc. v. Siracusano), and federal preemption (Wyeth v. Levine and Altria Group, Inc. v. Good).  During the Supreme Court’s October 2010, 2011, and 2012 Terms, five different firm lawyers argued a total of 17 merits cases and successfully represented the State of Tennessee in an original action, Mississippi v. City of Memphis, at the pleadings stage.

In addition to our Supreme Court practice, the firm’s attorneys regularly handle matters in federal and state appellate courts throughout the country.  They have argued in every federal court of appeals.  In recent years, our lawyers have also argued multiple patent-related appeals before Federal Circuit panels and the en banc court.  We also apply our appellate expertise at the trial level to shape litigation strategy and to ensure that legal issues are preserved and persuasively framed for appellate review.  Our appellate lawyers have written articles and treatises on Supreme Court and appellate advocacy.  In addition, the firm’s appellate practice has been recognized by The National Law Journal, The American Lawyer, and others for its results.  The National Law Journal included the firm on its “Appellate Hot List” for 2011, 2012, and 2013.

Noteworthy Representations

Successfully represented technology company in winning unanimous reversal of an en banc Federal Circuit ruling expanding doctrine of induced infringement.  Limelight Networks, Inc. v. Akamai Techs., Inc., 134 S. Ct. 2111 (2014). 

Successfully represented Ritz Camera and proposed class action in an interlocutory appeal to the Federal Circuit in a case establishing that the Supreme Court's decision in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965), allowed direct purchasers to bring antitrust claims under Section 2 of the Sherman Act for monopolization based on fraudulently procured patents regardless of whether the purchaser would have independent standing to challenge the validity of the patent.  Ritz Camera & Image, LLC v. SanDisk Corp., 700 F.3d 503 (Fed. Cir. 2012).

Successfully represented several States, and qui tam relator, on appeal concerning issues of what constitutes a false or fraudulent claim for government payments.  New York, et al. ex rel. Westmoreland v. Amgen, 652 F.3d 103 (1st Cir. 2011).

Successfully defended a jury award for an injured railroad worker in an action under the Federal Employers’ Liability Act against a challenge to the longstanding proximate-causation standard established for FELA cases.  CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 (2011).

Successfully represented investors in an action under § 10(b) of the Securities Exchange Act of 1934 based on a drug manufacturer’s failure to disclose information about harmful side effects of its products.  A unanimous Supreme Court held that the plaintiffs could state a claim for securities fraud without alleging that the number of undisclosed adverse events had been statistically significant.  Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011).

Successfully represented investors in an action under § 10(b) of the Securities Exchange Act of 1934 where a drug manufacturer argued that the claims were time-barred.  All nine Justices upheld the claims as timely, clarifying the standard for when plaintiffs “discover” the facts underlying a securities claim, and rejecting the “inquiry notice” standard that had been applied by several courts of appeals.  Merck & Co. v. Reynolds, 130 S. Ct. 1784 (2010).

Successfully represented investors challenging excessive fees charged by a mutual fund investment adviser.  After obtaining Supreme Court review of a decision dismissing our clients’ case, the Supreme Court unanimously vacated the lower court’s judgment in a highly anticipated case interpreting the fiduciary duty of a mutual fund investment adviser under the Investment Company Act of 1940.  Jones v. Harris Associates L.P., 130 S. Ct. 1418 (2010).

Successfully represented the State of South Carolina as lead counsel in obtaining favorable settlement of an equitable apportionment case concerning the Catawba River.  South Carolina v. North Carolina, No. 138, Orig. (U.S.).

Won affirmance of plaintiff’s judgment against drug manufacturer and persuaded the Supreme Court to reject manufacturer’s claim that the Food and Drug Administration’s approval of drug labeling preempted lawsuits for failure to warn.  Wyeth v. Levine, 555 U.S. 555 (2009).

Won reversal of Ninth Circuit “price squeeze” decision, overturning 60-year-old precedent, and persuaded Supreme Court to adopt broad ruling that, in the absence of a duty to deal, a wholesale monopolist has no obligation to avoid setting prices that disadvantage downstream rivals.  Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U.S. 438 (2009).

Successfully represented a class of plaintiffs in a lawsuit against a major cigarette manufacturer for decades of fraud in the marketing and sale of “light” cigarettes.  The Supreme Court ruled that plaintiffs’ state-law fraud claims were neither expressly preempted by the Federal Cigarette Labeling and Advertising Act nor impliedly preempted by the Federal Trade Commission’s purported regulation of “light” cigarettes.  Altria Group, Inc. v. Good, 555 U.S. 70 (2008).

Successfully represented State of Delaware in an original action in the Supreme Court to resolve a boundary dispute between Delaware and New Jersey to determine whether a multi-billion-dollar liquefied natural gas bulk transfer facility constructed on the New Jersey side of the boundary could encroach into Delaware.  New Jersey v. Delaware, 552 U.S. 597 (2008).

Successfully represented AT&T and other telecommunications firms in securing reversal of the Second Circuit and dismissal of antitrust conspiracy claim in the most significant decision on pleading standards in 50 years.  Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Obtained reversal of Second Circuit decision in which the Supreme Court set a standard for RICO proximate causation under which a plaintiff cannot bring a RICO claim by alleging a failure of a competitor to pay state sales tax, thereby leading to dismissal of multi-million-dollar claims against our clients.  Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006).

Obtained a unanimous decision reversing Fourth Circuit decision and holding that, to remove a case on diversity grounds, named defendants have no obligation to demonstrate that there is no unnamed, potential defendant whose presence in the action would destroy diversity.  Lincoln Property Co. v. Roche, 546 U.S. 81 (2005).

Obtained reversal of Fifth Circuit decision in which the Supreme Court held that farmers’ claims for crop injury from pesticides are not preempted by Federal Insecticide, Fungicide, and Rodenticide Act and reinstated claims for approximately $30 million in crop damages.  Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005).

Successfully represented Verizon Communications in overturning Second Circuit decision in the most significant Supreme Court decision interpreting the scope of Section 2 of the Sherman Act since Aspen SkiingVerizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).

Obtained reversal of Ninth Circuit decision in which the Supreme Court held that a district court to which a case has been transferred for coordinated pre-trial proceedings may not assign that case to itself for trial, but must instead, at the close of the pre-trial proceedings, remand the case to the originating district court.  On remand, obtained a jury verdict exceeding $50 million on various tort claims, including commercial disparagement and defamation and abuse of process.  Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), and No. 1:92-CV-07768 (N.D. Ill.).