Appellate Litigation

Overview

Our appellate practice is broad in scope, and our lawyers have handled or advised on appeals in a wide variety of subject areas, including:

Examples of clients we have represented in appeals in the federal and state courts include:

Arcelor  Banco Español de Crédito BASF Group BCE Inc. The BOC Group Citigroup Credit Suisse

Duane Reade First Boston Ford Motor Company Merrill Lynch The Republic of France West Publishing

Services Offered

Our appellate lawyers provide clients a full range of appellate services, including:

• Providing independent judgment on the likelihood of successful appeals of matters handled by other firms or in-house counsel
• Reviewing lower court records and overseeing post-trial motions to ensure the preservation of all potential appellate issues
• Drafting briefs and arguing appeals on behalf of parties
• Advising clients with respect to amici curiae participation in cases of industry-wide significance
• Preparing and coordinating briefs on behalf of amici curiae
• Drafting petitions to the U.S. Supreme Court for writs of certiorari
• Commenting on appellate briefs written by other law firms or in-house counsel
• Participating in moot courts to prepare advocates for oral argument
• Advising on all facets of appellate practice, including appellate mediation, motions for stays, expedition requests, and the posting of supersedeas bonds and otherwise delaying execution of judgment pending appeal

Representative Appeals

Securities Fraud

• Flag Telecom in interlocutory appeal to Second Circuit of class certification order that included "in-and-out" purchasers—investors who sold their shares before the disclosure to the market of the putative fraud—from the certified class; in issue of first impression, certification order vacated as to "in-and-out" purchasers
• Merrill Lynch in interlocutory appeal to Fifth Circuit of class certification order that allowed securities fraud plaintiffs to take advantage of the fraud-on-the-market theory to establish reliance; class certification order reversed
• Spanish credit bank Banco Español de Crédito, S.A. in appeal to Second Circuit of a $30 million judgment for securities fraud; judgment reversed
• Ford Motor Company in appeal to Sixth Circuit of the dismissal of a class securities fraud action against Ford Motor Company arising out of the Firestone tire/Ford Explorer controversy; dismissal affirmed
• High-ranking executive of Symbol Technologies in appeal to Second Circuit of order restraining executive’s assets pending resolution of criminal securities fraud action; order reversed
• The Republic of France as amicus curiae in U.S. Supreme Court in Morrison v. National Australia Bank Ltd. on whether § 10(b) of the Exchange Act applies to “foreign cubed” securities fraud actions in which foreign investors sue foreign issuers for alleged fraud in connection with the purchase or sale of securities on foreign exchanges
• Amici curiae International Chamber or Commerce, the Organization for International Investment, and the Federation of German Industries in U.S. Supreme Court in Stoneridge Inv. Partners, LLC v. Scientific-Atlanta on the applicability of the fraud-on-the-market theory to deceptive conduct by a corporation’s vendors and customers
• Amici curiae investment banking firms in U.S. Supreme Court in Musick, Peeler & Garrett v. Employees Ins. of Wausau on the right to contribution under the securities laws

Antitrust

• BASF AG in appeal to U.S. Supreme Court in F. Hoffman-La Roche Ltd. v. Empagran S.A. challenging the D.C. Circuit’s extraterritorial application of the Sherman Act in a global antitrust class action; decision reversed
• West Publishing Company Customers in appeal to Ninth Circuit of judgment approving a class settlement in an antitrust action against providers of bar review courses; judgment affirmed
• Organization of Petroleum Exporting Countries in appeal to Eleventh Circuit of dismissal of antitrust claims; judgment affirmed

Breach of Contract/Business Torts

• Fluorogas Limited and The BOC Group plc in appeal to Fifth Circuit of $180 million damages judgment for fraud and breach of an international technology licensing agreement; judgment reversed and rendered
• Orthofix Group companies as plaintiffs in two-month federal-court jury trial and appeal before Third Circuit of breach of contract, business tort, and intellectual property claims against former distributor and distributor’s corporate parents; recovered $64 million—seventh largest jury award in 2007 and fourth largest recovery after appeal
• The BOC Group plc in appeal to Fifth Circuit of the denial of a motion to compel arbitration of $960 million dispute arising out of a Chinese chemical project; appeal dismissed upon settlement after oral argument

International Trade

• Arcelor in appeal to Federal Circuit of order relating to U.S. Department of Commerce’s instructions to collect duties on German stainless steel; order reversed
• Usinor in appeal to Federal Circuit of U.S. Department of Commerce’s methodology for assessing countervailing duties against privatized companies; judgment affirmed
• Venezuelan electrical rod producers in appeal to Federal Circuit of judgment dismissing antidumping case; judgment affirmed

Arbitration, Privilege, Sanctions and Other Appeals

• BCE Inc. in appeal to Third Circuit of interlocutory order to produce 900 privileged documents in what has become one of the leading cases on in-house privilege law; production order reversed
• Orthofix Group companies in shareholder class-action litigation in district court and on appeal to Second Circuit; judgment confirming arbitration and dismissing all claims with prejudice affirmed
• Joint Liquidatators of EMLICO in appeal of arbitration confirmation to Second Circuit; judgment confirming arbitral decision affirmed
• Citibank in appeal to U.S. Supreme Court in Smiley v. Citibank (South Dakota), N.A. challenging California Supreme Court’s dismissal under the National Bank Act of suit alleging excessive credit card late charges; decision affirmed
• Government of Mexico in appeal to Ninth Circuit of a judgment reversing default judgment and dismissing a tortious interference action; judgment affirmed
• Japanese banks in Supreme Court of Guam in litigation regarding the need for business and foreign corporation licenses in connection with a real estate loan; judgment reversed
• Duane Reade in an appeal to D.C. Circuit of adverse decision by the National Labor Relations Board; case settled before decision on appeal
• Amicus curiae BayhDole25, Inc. in U.S. Supreme Court in Microsoft Corporation v. AT&T Corporation on the applicability of U.S. patent laws to computer software object code sent overseas by golden master disk and encrypted transmissions
• Amicus curiae Credit Suisse First Boston in U.S. Supreme Court in Circuit City Stores, Inc. v. St. Clair Adams regarding Federal Arbitration Act’s employment-contract exclusion
• Amicus curiae Institute of International Container Lessors in U.S. Supreme Court in Itel Containers Intern. Corp. v. Huddleston on the constitutionality of a state sales tax under the Commerce Clause