Quinn emanuel trial lawyers

Appellate Practice

Introduction Print

Quinn Emanuel has an extensive nationwide appellate practice that focuses on briefing and arguing significant cases before the Supreme Court of the United States and the federal courts of appeals (particularly the Second, Ninth, and Federal Circuits), and also maintains an extensive practice before the high courts and intermediate courts of appeal of California, New York and other states.  Our appellate experience spans all areas of our practice, from copyright, patent, trademark and trade secret law to antitrust, arbitration, business torts, commercial contracts, financial products, insurance and reinsurance, media, securities, bankruptcy, products liability and white-collar criminal defense.  Our appellate group has received numerous accolades, including being named to The National Law Journal’s prestigious “Appellate Hot List” in 2016—the sixth time in the last seven years it has received that honor.

Our appellate practice is headed by Kathleen M. Sullivan, who joined Quinn Emanuel in 2005 after a storied career as a professor at Harvard and Stanford Law Schools and as Dean of Stanford  Law School.  The author of leading casebooks on constitutional law and the First Amendment (as well as numerous articles published in both the academic and the popular press), Ms. Sullivan became the first and only woman name partner of an AmLaw 100 firm in 2010, when the firm became Quinn Emanuel Urquhart & Sullivan, LLP.  Ms. Sullivan is one of the nation’s most renowned appellate litigators, and has been named repeatedly to The National Law Journal’s list of “The 100 Most Influential Lawyers in America.” Chambers USA has described her as a “brilliant appellate lawyer” and “a consummate practitioner before any appeal court,” who wins clients’ approval as a “tremendously agile and a fabulous advocate.”  Benchmark Litigation named Ms. Sullivan a Top 10 Female Litigator for 2016 and a Top 10 Appellate Star for 2017, and Law360 has named her an Appellate MVP three times.  The American Lawyer awarded Ms. Sullivan Litigator of the Week honors for the third time in 2016, after having profiled her in a 2013 cover story entitled “The Golden Touch.”  The New York Law Journal (ALM) conferred on her a Lifetime Achievement award in 2015, and in 2017 Legal 500  named her to “The Hall of Fame.”  Ms. Sullivan was elected to the American Academy of Appellate Lawyers in 2014.

Quinn Emanuel’s immensely talented appellate team also includes Susan R. Estrich, the first woman President of the Harvard Law Review and a former law clerk to U.S. Supreme Court Justice John Paul Stevens; Sheila L. Birnbaum,  an expert Supreme Court advocate whose wins include the seminal decision in State Farm v. Campbell, which announced constitutional limits on awards of punitive damages; Daniel H. Bromberg, also a skilled Supreme Court advocate with experience at every level of appellate litigation and special expertise in California appellate courts; Sanford (“Sandy”) I. Weisburst , first in his class at University of Chicago Law School and a former law clerk to Justice Clarence Thomas; Christine H. Chung, former chief of appeals in the U.S. Attorney’s Office for the Southern District of New York and prosecutor at the International Criminal Court; Derek L. Shaffer, first in his class at Stanford Law School and a former clerk on the D.C. Circuit; William B. Adams, also a former clerk on the D.C. Circuit with a wide range of appellate experience; and David Cooper, first in his class at Stanford Law School and former law clerk to Justice Anthony Kennedy.

Quinn Emanuel’s appellate practice is also uniquely intertwined with its trial practice; the firm’s leading trial lawyers, such as founder John B. Quinn, Faith E. Gay, Richard I. Werder, Jr., Philippe Z. Selendy, Michael B. Carlinsky, Robert L. Raskopf, Adam M. Abensohn and Christopher Tayback, regularly argue and win significant appeals.  Among our patent lawyers, Charles K. Verhoeven’s win-loss record as lead counsel in the Federal Circuit is now a remarkable 21-2, with Victoria F. Maroulis, David A. Perlson, Brian C. Cannon, Peter J. Armenio, P.C., Raymond N. Nimrod and Kevin P.B. Johnson also routinely scoring important Federal Circuit wins. 

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Recent Representations Print

JUMP TO:

SUPREME COURT OF THE UNITED STATES:

  • We recently obtained a unanimous victory in the Supreme Court for our client Samsung in a case arising from the so-called “smartphones wars” between Samsung and Apple.  In Samsung Electronics Co. v. Apple Inc., the first design-patent case to reach the Supreme Court in more than a century, the Court reversed a Federal Circuit decision that had upheld a $399 million judgment against Samsung for design-patent infringement, which represented Samsung’s entire profits on smartphones that were found to infringe Apple’s narrow patents on designs for portions of a smartphone’s exterior case or display screen.  Adopting our reading of the statutory text, the Court held that a design-patent plaintiff is entitled to recover only infringer’s profits made from the “article of manufacture” to which a patented design is “applied,” and that an “article of manufacture” may be a product component (such as a smartphone’s outer case).  The Court thus rejected the Federal Circuit’s rule that infringer’s profits must be calculated on the basis of the entire product as sold (such as a smartphone itself). 
  • We successfully challenged the gender-based derivative citizenship requirements in 8 USC 1409(a) and 1409(c) as unconstitutional under the 5th Amendment’s principle of equal protection.
  • We won a unanimous Supreme Court victory for Randy Shauers in Warger v. Shauers, which resolved a long-standing circuit split regarding Federal Rule of Evidence 606(b)’s prohibition on testimony of jurors about statements made during deliberations when the testimony is offered in “an inquiry into the validity of a verdict or indictment.”  Petitioner Warger challenged a jury verdict in favor of Mr. Shauers, seeking to introduce a juror’s affidavit alleging that a fellow juror was dishonest during voir dire.  In its opinion, the Supreme Court adopted our arguments based on plain language and legislative history, holding that Rule 606(b) prohibits using such juror testimony to attempt to overturn a jury verdict. 
  • In a case The New York Times called “the most important business decision” of the Supreme Court’s October 2012 Term, we won a landmark unanimous victory for Shell Oil in Kiobel v. Royal Dutch Petroleum, which held that the Alien Tort Statute (ATS), enacted by the First Congress in 1789, does not provide a cause of action in U.S. courts for alleged violations of international law that take place in foreign countries.  Applying the presumption against extraterritorial application of U.S. law, the Court upheld the dismissal of a suit by Nigerian plaintiffs against Dutch and English companies for alleged conduct in Nigeria.  The decision greatly curtails the availability of the ATS as a vehicle to sue corporations in U.S. courts for supposedly aiding and abetting foreign governments’ wrongdoing.
  • We obtained a 7-2 victory in the Supreme Court for Roche in Bd. of Trustees of Leland Stanford University v. Roche Molecular Systems, Inc., which arose from a suit involving patents related to HIV treatment that had been developed in a collaboration between Stanford and Roche’s predecessor.  The Court sided with Roche, holding that it was a co-owner of the patents-in-suit and rejected Stanford’s effort to void its contracts based on its receipt of federal funding, reasoning that the Bayh-Dole Act—the statute governing federal research funding—does not give automatic ownership of patents to universities.
  • We secured a 6-2 victory for Wyeth LLC (part of Pfizer Inc.) in the Supreme Court in Bruesewitz v. Wyeth, which held that the National Childhood Vaccine Injury Act preempts state-law claims based on theories of defective design in governmentally-approved child vaccines. The decision has significant implications for public health and vaccine supply, as it removes design-defect claims that if permitted would have increased manufacturers’ costs and depressed vaccine supply and development. 
  • We won an 8-1 victory for Shell Oil in the Supreme Court in Burlington Northern & Santa Fe Railway v. United States, which greatly limited “arranger” liability under CERCLA and held that Shell could not be held liable as an arranger for shipping useful chemicals.  The decision also clarified the standards for apportionment under CERCLA.
  • We obtained a Supreme Court victory for Japanese ocean carrier “K” Line in  Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., which unanimously held that ocean carriers are not subject to regulation under the Carmack Amendment when they make intermodal shipments that travel both by sea and by land. 
  • In Granholm v. Heald, our lawyers obtained a 5-4 victory in the Supreme Court on behalf of California vintners and Michigan consumers challenging state laws imposing discriminatory restrictions on interstate shipments of wine.  The Court held that the Twenty-First Amendment does not give states license to interfere with the national market in a way that violates the Dormant Commerce Clause.
  • We have filed numerous amicus curiae briefs in Supreme Court business cases on behalf of such clients as the Chamber of Commerce, the New York Stock Exchange and NASDAQ, and, in patent cases, such clients as Google, Cisco, Oracle, Red Hat, Symantec, Xilinx, Time Warner, AOL, Xerox, IAC/Interactive, Infineon, Chevron, Shell, and Affymetrix.
  • We have also filed amicus briefs pro bono in theSupreme Court on behalf of such clients as former members of Congress; the American Association of University Professors; the Anti-Defamation League; former Secretary of State Madeleine Albright; four former Secretaries of the Interior; the Attorneys General of twenty-seven States and the District of Columbia; and the Conference of Chief Justices.

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STATE SUPREME COURTS:

  • We obtained a 5-0 decision from the New York Court of Appeals for an association of reinsurers vacating a summary judgment in a $400 million reinsurance case and holding that the “follow the fortunes” doctrine does not bar review of whether an insurer’s  allocation of a settlement to its reinsurers has an objectively reasonable basis.
  • We represented then-New York Governor David Paterson and then-Lieutenant Governor Richard Ravitch in a victory The New York Times called “stunning,” obtaining a 4-3 victory in the New York Court of Appeals holding that Mr. Paterson had the authority to appoint Mr. Ravitch Lieutenant Governor to fill a vacancy in that office created when Mr. Paterson assumed the Governorship.
  • We secured a 7-0 victory in the California Supreme Court for the University of Southern California in a decision holding that state trial courts have a duty to act as “gatekeepers” in excluding speculative and unreliable expert testimony, a decision that moves the California courts closer to the Daubert standard used in the federal courts—thereby reducing incentives for forum-shopping in cases involving expert testimony.
  • We recently secured a unanimous win in the Delaware Supreme Court, which affirmed a complete defense verdict that we had obtained for Athilon Capital and its board of directors in a lawsuit brought by Quadrant Structured Products (owned by Magnetar).   In this bet-the-company case, Quadrant sought not only hundreds of millions of dollars and findings of breach of fiduciary duty against the members of the Athilon board as individuals, but also an order requiring Athilon to liquidate its assets and shut down its business.  Instead, the Chancery Court denied all the relief Quadrant requested, leaving Athilon free to continue the long-term business strategy Quadrant challenged at trial.  The Delaware Supreme Court affirmed that victory in full.
  • We obtained a unanimous victory for AIG in the Delaware Supreme Court, which affirmed dismissal of a suit in which eight plaintiffs alleged AIG breached guaranteed investment contracts in 2008 by triggering the contracts’ event of default provisions.
  • Representing AIG in a rare win for an insurer in the Supreme Judicial Court of Massachusetts, we successfully petitioned for review of, and then succeeded in reversing, an intermediate appellate court’s decision that a “judgment” for purposes of a treble-damages statute includes not only the amount of a judgment but also post-judgment interest that has accrued on that judgment. Because Massachusetts imposes a statutory 12% annual interest rate, that decision had increased the judgment against AIG by more than $4.2 million.   The SJC ruled unanimously in our favor, adopting our interpretation of the statute and thus eliminating over a third of the judgment.
  • In a rare win for an insurer in the West Virginia Supreme Court, we won a unanimous victory for AIG vacating all that was left of a $58 million jury verdict against subsidiaries of AIG involved in an environmental insurance coverage dispute.  We first had challenged the underlying punitive damages and successfully reduced that verdict by $28 million on post-trial motions.  We then litigated the remaining $30 million before the the West Virginia Supreme Court.  In a unanimous decision, the Court rejected the plaintiffs’ argument that they were entitled to damages against a corporation for alleged injuries to its shareholders, and zeroed out the judgment.  We thus made new law in West Virginia reinforcing the doctrine of corporate separateness..

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LOWER FEDERAL AND STATE APPELLATE COURTS:

ANTITRUST

Acting for a group of plaintiffs including the City of Philadelphia and Prudential, we played a leading role in obtaining a victory in the Second Circuit in the ongoing antitrust litigation over financial institutions’ manipulation of the U.S. Dollar London Interbank Offered Rate (“Libor”).  The district court dismissed the plaintiffs’ antitrust claims, ruling that because the Libor-setting process was cooperative, plaintiffs could not allege defendants engaged in anticompetitive conduct.  But the Second Circuit reversed, adopting our arguments and holding that Libor manipulation in fact constitutes horizontal price-fixing (a per se antitrust violation), that the plaintiffs’ loss of money constituted a cognizable antitrust injury, and that the plaintiffs were not required to plead any additional anticompetitive harm.

Acting for The Home Depot, we had a central role in persuading the Second Circuit to overturn a $7.25 billion class-action settlement in an antitrust suit against Visa and MasterCard arising out of wrongfully inflated credit card swipe fees.  In exchange for the cash payment and certain injunctive relief, the settlement required more than 12 million merchants to release all current and future claims against Visa and MasterCard—without permitting merchants to opt out of that release.  The district court approved the settlement, but we persuaded the Second Circuit that the class had been inadequately represented in violation of Fed. R. Civ. P. 24(a)(4) and that the settlement violated class members’ due process rights because the relief was insufficient and merchants were unable to opt out of the release. 

We obtained a unanimous win for Samsung in the Ninth Circuit in a case making significant new law on the antitrust statute of limitations for “continuing conspiracies.”  We took the case over on appeal after the district court had applied the statute of limitations to dismiss Samsung’s antitrust claims based on anticompetitive royalties charged on “SD” memory cards.  We persuaded the Ninth Circuit to reverse and reinstate the claims for trial, holding that the imposition of new anticompetitive royalties in 2006 was a new act that restarted the statute of limitations under the “continuing conspiracy” doctrine, even if the first anticompetitive royalties had been imposed outside the limitations period back in 2003. 

We represented DIRECTV in the California Court of Appeal, successfully defending on appeal a summary judgment we previously won in an antitrust action.  The plaintiff (a retailer) alleged that DIRECTV engaged in a horizontal conspiracy by coercing other retailers into not bidding on sales leads offered by the plaintiff, so that DIRECTV could acquire them at below-market prices.  We successfully argued that DIRECTV’s restrictions on its retailers were vertical (not horizontal) restraints on competition, meaning that they were subject to the rule of reason, and further persuaded the trial and appellate courts that the plaintiff could not establish essential elements of its claim, including an anticompetitive purpose or effect, a relevant market, or antitrust injury. 

ARBITRATION LAW

We represented Wellquest International, Inc. in an appeal from an order denying a motion to compel arbitration.  Unlike a typical broad arbitration agreement, the arbitration provision at issue covered only those claims “arising out of or related to” an audit clause that gave plaintiff the right to initiate an audit for unpaid royalties.  The trial court held that because plaintiff never initiated an audit, the arbitration provision did not apply to claims for unpaid royalties.  We persuaded the California Court of Appeal to reverse, holding that notwithstanding the limited arbitration provision, because the claims for unpaid royalties are “related to” the audit clause, those claims must be arbitrated.   

We represented the Abu Dhabi Investment Authority in an arbitration arising from a $7.5 billion investment in Citigroup.  While Citigroup asked the district court to enjoin the arbitration on res judicata grounds, both that court and the Second Circuit on appeal rejected Citigroup’s arguments—siding with us and ADIA and holding that the preclusion issue must be decided by the arbitrators in the first instance.   

We represented Ortho-McNeil, a subsidiary of Johnson & Johnson, in a unanimous Seventh Circuit victory that made new law narrowing “manifest disregard of the law” as a ground for district court vacatur of arbitral awards and reversed a partial vacatur of an award that had favored Ortho in a patent dispute.

We obtained a victory for Sequus Pharmaceuticals, another subsidiary of Johnson & Johnson, persuading the Ninth Circuit to issue a decision that strengthened protection of foreign arbitral awards by holding that the removal provision of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards should be construed broadly to prevent state-court end runs around foreign arbitration.

 We represented Koch Industries’ INVISTA subsidiaries in obtaining dismissal of an appeal by French chemicals firm Rhodia S.A, which had attempted to obtain a stay of litigation in favor of a foreign arbitration involving two Rhodia affiliates and one of the three INVISTA plaintiffs.  The Third Circuit’s decision allowed INVISTA’s claims against Rhodia over rights to an important nylon process to move forward in Delaware state court while the foreign arbitration proceeded. 

BUSINESS CONTRACTS, TORTS, BANKRUPTCY, INSURANCE, AND SECURITIES

We represented Financial Guaranty Insurance Company in a case relating to a $900 million insurance policy on a credit default swap referencing a $1.5 billion collateralized debt obligation.  We obtained a complete reversal from the Second Circuit of the district court’s order dismissing the complaint for failure to state a claim, protecting our client’s right to pursue its claims for fraud, negligent misrepresentation, and negligence.

We represented Cointer Chile and Azvi Chile in its appeal of the dismissal of a breach of contract claim seeking over $80 million in damages based on Scotiabank’s alleged gross negligence in preparing a financial model, and persuaded the New York Appellate Division, First Department to reverse the trial court’s decision and reinstate the claim.

We represented Dr. Enrico Bondi (Extraordinary Administrator for the former Parmalat companies) in a case involving accounting malpractice and related misconduct by former auditor Grant Thornton.  Dr. Bondi’s case against Grant Thornton was originally filed in Illinois state court but then was removed to federal court and proceeded there for years, resulting initially in a summary judgment in favor of Grant Thornton.  We persuaded the Second Circuit to reverse, and to order that the case be remanded to state court on abstention grounds.  But the federal district court in Illinois declined to follow that instruction, so we again appealed—this time to the Seventh Circuit, which reversed and definitively ordered remand to state court for the proceedings to restart on a clean slate.  Earlier in the case we obtained a $150 million settlement against various Deloitte entities, and in a separate proceeding obtained a $100 million settlement against Bank of America.

In the federal multidistrict litigation, In re Zoloft, several hundred plaintiffs alleged that use of Zoloft, an antidepressant sold by Pfizer, during pregnancy caused children to be born with birth defects. We, as national and lead counsel for Pfizer, led a defense team that secured an important appellate ruling in the U.S. Court of Appeals for the Third Circuit, in which the court unanimously affirmed the exclusion of the plaintiffs’ key causation expert evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and entry of summary judgment in favor of Pfizer.

We represented Colgate-Palmolive Co. in an appeal to the Fourth Circuit challenging the denial of Colgate’s motions to vacate orders remanding two asbestos-related cases to state court.  The Fourth Circuit, sitting en banc, agreed with our argument that 28 U.S.C. 1447(d)’s prohibition on “review” of  remand orders does not preclude “vacatur” of a remand order pursuant to Fed. R. Civ. P. 60(b)(3) due to fraud or other misconduct in procuring that order.  This ground-breaking decision provides a powerful new tool for the defense bar and ensures that federal courts are not impotent when plaintiffs and their counsel seek to avoid federal jurisdiction through misconduct.  

We obtained a unanimous victory for AIG in the U.S. Court of Appeals for the Second Circuit in a suit against Bank of America and other banks in an action against fraudulent RMBS practices.  The defendant banks had removed AIG’s state-court claims to federal court under purported authority of the Edge Act, using the fact that a few mortgages issued by Countrywide, later acquired by BOA, had been executed in Guam and other insular territories and thus supposedly created federal jurisdiction.  The Second Circuit reversed, holding in a case of first impression that the Edge Act was inapplicable here because it confers federal jurisdiction only in suits that (unlike this one) arise out of offshore banking or foreign financial transactions by the federal banking corporation that is party to the suit.  The cases thus returned to state court and were ultimately successfully settled.

We won a Second Circuit victory for Allegheny Energy that not only overturned a $158 million judgment against Allegheny but also reinstated $350 million in counterclaims that Allegheny had asserted against Merrill Lynch. On remand, we took over as trial counsel for Allegheny and secured a favorable settlement.

We represented several subsidiaries of AIG in successfully persuading the U.S. Court of Appeals for the Second Circuit to reverse a $34 million judgment after jury trial in a reinsurance dispute.  In January 2008, a jury in the U.S. District Court for the Southern District of New York had found AIG liable for fraudulently inducing AXA Versicherung AG (f/k/a Albingia Versicherungs AG) to enter into six reinsurance agreements for energy-related risks.  The district court rescinded the agreements and ordered AIG to pay over $34 million, including $5.75 million in punitive damages.  Taking the unusual step of overturning a jury verdict, the Second Circuit unanimously reversed, holding that the claims against our clients were barred by the statute of limitations on claims of fraud because the plaintiff reinsurer was on notice well before two years prior to filing suit of key facts from which it could have inferred its claims.  Because one basis for such notice was  the terms of a contract that the plaintiff had signed but claimed it had not read, the decision also strongly reaffirmed that New York law charges a party with knowledge of the terms of its contracts.

We obtained a win in the California Court of Appeal for QBE Insurance (Europe) Limited and Beazley Syndicate 2623/623 at Lloyd’s,securing reversal of a $12 million judgment.  The two insurers had issued policies that were initially found to cover losses to restaurants related to feared contamination of fresh spinach; we persuaded the Court of Appeal that the plaintiffs had not shown that the losses were caused by conduct covered by the policies, as opposed to market-wide events.

We represented Grupo Televisa in a case against Florida-based Telemundo for tortious interference with Televisa’s exclusive agreement with one of Spanish-language television’s biggest stars.  After the district court granted summary judgment to Telemundo, holding that Televisa’s claims were governed by Mexican law, which does not recognize the interference tort, we convinced the Eleventh Circuit to reverse unanimously in a decision with broad ramifications for the many Latin American companies that do business in Florida.

We represented monoline insurer Assured Guaranty in a suit against DLJ Mortgage Capital and its parent Credit Suisse alleging breach of contract, fraud, and material misrepresentation in the inducement of an insurance contract arising out of defendants’ pervasive misrepresentations concerning the credit quality of mortgage loans underlying six RMBS transactions sponsored and underwritten by defendants, for which Assured provided financial guaranty insurance.  Assured sought damages of approximately $400 million.  After three years of litigation, including a successful appeal to the New York Appellate Division, First Department, which fully reinstated part of Assured’s breach of contract claims that had been dismissed by the trial court, the suit was settled on mutually agreeable terms.

We obtained a win for GFI Group on an appeal to the New York Appellate Division, First Department in an employment action that involved breaches of restrictive covenants in a former senior manager’s employment agreement.  The trial court granted the manager summary judgment both on his claims and on GFI’s counterclaims, but GFI then retained us to lead its appeal.  We persuaded the First Department to vacate the summary judgments and to remand for trial of both the manager’s claims and GFI’s counterclaims.

We obtained a unanimous win in the Second Circuit for the Federal Housing Finance Agency (FHFA), defeating statute-of-limitations objections by 18 banks that FHFA sued for fraudulent RMBS offerings and obtaining a nationally important ruling that the statute of limitations in the Housing and Economic Recovery Act of 2008 supersedes the statute of repose in the Securities Act of 1933.

On behalf of our client, G-I Holdings, we won affirmance in the Third Circuit of the bankruptcy court’s dismissal of an adversary proceeding filed by the New York City Housing Authority (“NYCHA”).  The complaint sought injunctive relief compelling G-I itself to remove asbestos-containing materials from NYCHA’s buildings, which would have cost G-I at least $500-$600 million.  NYCHA sought an injunction (rather than damages) in order to circumvent G-I’s bankruptcy reorganization plan, arguing that its claim was one for equitable relief that was not discharged under the bankruptcy code or G-I’s plan.  But we persuaded the Bankruptcy Court, the District Court, and finally the Third Circuit that NYCHA’s claim was ineligible for any exception to the discharge.    

We obtained a unanimous decision from the Second Circuit, affirming partial judgment in a False Claims Act case against Pfizer.  In this qui tam action, a former employee alleged that Pfizer promoted Lipitor, its top-selling cholesterol-lowering medicine, “off-label,” claiming that Pfizer promoted Lipitor for use by certain patients whose cholesterol levels were not low enough to warrant treatment based on national cholesterol guidelines.  The Second Circuit affirmed the district court’s decision to dismiss these claims, rejecting the relator’s entire theory of “off-label” marketing.  It concluded that cholesterol guidelines summarized in the label merely “provide[d] advice and (unsurprisingly) guidance, ‘not mandatory limitation.’” 

We also obtained a unanimous victory for Pfizer in an asbestos case before the Maryland Court of Special Appeals.  The plaintiffs alleged that Pfizer was the “apparent manufacturer” of asbestos-containing products made by a former subsidiary, but we persuaded the appellate court to affirm the trial court’s grant of summary judgment that Pfizer was not such an “apparent manufacturer” as a matter of Maryland law.  This precedent-setting decision effectively ended more than 500 “apparent manufacturer” suits against Pfizer, and will discourage further such suits from being filed elsewhere. 

We obtained a $70 million post-trial victory, affirmed on appeal to the Federal Circuit, for our client Cisco in a fraud case based on allegations that Cisco had delayed telling plaintiff XpertUniverse that a partnership application had been denied.  After a jury awarded $70 million in fraud damages, Cisco retained us as lead counsel for post-trial motions and appeal.  We persuaded the district court to overturn the jury’s verdict and to enter a complete judgment as a matter of law for Cisco on the fraud claim.  The Federal Circuit unanimously affirmed the judgment for Cisco, agreeing with our arguments that the evidence had been insufficient to support the award.

We obtained a unanimous victory for our client Pinterest in the New York Appellate Division, First Department, which affirmed the dismissal of all claims asserted against Pinterest in its very first lawsuit, a trade-secret case in which the plaintiff alleged that he had come up with the idea for the wildly successful Pinterest website only to have it misappropriated by Pinterest’s first investor.  The decision adopted our arguments in explaining that the plaintiff failed to state claims for aiding and abetting breach of fiduciary duty, trade-secret misappropriation, unjust enrichment and unfair competition.

We obtained a victory in the Second Circuit for EQUATE Petrochemical Company, a Kuwaiti firm, in a contract dispute filed by Continental Industries Group.  The district court dismissed the case on the pleadings for lack of personal jurisdiction.  The Second Circuit unanimously affirmed, finding no general or specific jurisdiction over EQUATE and holding that Continental was not entitled to jurisdictional discovery. 

We successfully represented The Coca-Cola Company in two appeals to the Second Circuit and one appeal to the Eleventh Circuit involving claims under the Alien Tort Statute arising from alleged actions in Colombia, Turkey, and Guatemala. 

In a victory for Empresas Cablevisión, a subsidiary of Mexico’s Grupo Televisa, the world’s largest Spanish-language media company, we obtained and upheld on appeal to the Second Circuit injunctive relief barring JPMorgan from transferring an interest in a loan to a bank controlled by Mexican billionaire Carlos Slim, owner of a company that competes directly with Empresas Cablevisión.  The decision led JPMorgan to consent to repurchase the loan interest it had sold to the Slim bank.

CONSTITUTIONAL LAW AND CIVIL RIGHTS

We represented the Kamehameha Schools, the world’s largest private K-12 educational trust, obtaining an 8-7 en banc victory in the Ninth Circuit that held that the schools do not engage in “race discrimination in contracting” in violation of 42 U.S.C. § 1981 by giving an admissions preference to the Native Hawaiian schoolchildren for whose benefit they were founded by one of Hawaii’s last monarchs.

We obtained a unanimous pro bono victory in the Second Circuit in an appeal involving the Individuals with Disabilities in Education Act (“IDEA”), a federal law that guarantees students with disabilities a “free appropriate public education.”  The court’s 50-page decision vacated the district court’s refusal to require the NYC Department of Education to pay the tuition for a private program in which our client had placed her severely autistic daughter because she believed that the public school could not offer a safe and appropriate learning environment.  The court concluded that our client had standing to seek public payment of that private school tuition even though she had not been able to afford to pay the tuition upfront, holding that the “IDEA promises a free appropriate education to disabled children without regard to their families’ financial status.”

Representing a pro se plaintiff who alleged race discrimination under the Fair Housing Act, we persuaded the Second Circuit to reverse the district court’s dismissal of the complaint—persuading the court to hold that no heightened pleading requirement exists for civil rights complaints alleging racial discrimination.

COPYRIGHT

We obtained a unanimous win for Vimeo, a video-hosting website, in the Second Circuit in a suit by major record labels alleging copyright infringement based on user-uploaded videos that allegedly contained infringing music.  Vimeo sought summary judgment based on the safe harbor provisions of the Digital Millennium Copyright Act (DMCA).  The district court ruled that the DMCA protected most of the videos at issue, but also denied summary judgment in part based on its rulings that pre-1972 sound recordings are ineligible for that safe harbor and that questions of fact remained as to whether Vimeo had “red flag” knowledge of certain videos.  We successfully petitioned for permission to pursue an interlocutory appeal, and then convinced the Second Circuit that the DMCA safe harbor does apply to pre-1972 sound recordings, that mere awareness of a “famous” song in a video cannot confer “red flag” knowledge, and that Vimeo was not willfully blind to the alleged infringement. 

We represented YouTube and Google in a copyright action filed by Viacom, which claimed that YouTube was required to do more than it was doing to keep clips of Viacom shows off of its video-hosting website.  The district court granted summary judgment in our clients’ favor, ruling that the DMCA insulated YouTube and Google from liability.  The Second Circuit largely affirmed, agreeing with our positions on most of the disputed legal issues, but found that there might be disputed issues of fact that could preclude summary judgment.  On remand, however, the district court ruled that Viacom had not proffered evidence to give rise to any material disputes, and accordingly granted YouTube and Google summary judgment on all of Viacom’s remaining claims.  These decisions confirm that service providers like YouTube cannot be held liable for copyright infringement based on generalized knowledge that there may be infringing content somewhere on its website, but must instead know that specific clips are infringing. 

For our client Google, we successfully defended on appeal to the Ninth Circuit the summary judgment we had obtained of safe harbor under the DMCA against Perfect 10’s claims of more than two million alleged copyright infringements allegedly hosted by Google’s Blogger service or linked to by Google’s Web and Image Search services.

We represented the Baltimore Ravens and the NFL in a copyright case filed by the designer of the Ravens’ inaugural “Flying B” logo, which has since been changed.  We persuaded the district court that the challenged uses of the logo—in historical documentaries and photographic displays—constituted “fair use.”  The Fourth Circuit unanimously affirmed, agreeing with our argument that the challenged films and photos used the Flying B “as part of the historical record” and therefore constituted fair use regardless of any commerciality, market usurpation, or other fair use factors that might have supported the plaintiff’s position.  The court also provided a strong defense of the First Amendment value of the fair use doctrine. 

We represented Google and Twitter as amici curiae in the Second Circuit (including being allowed oral argument time) in a successful effort to narrow the tort of “hot news” misappropriation.

We successfully defended Time Warner Entertainment and HBO against a $56 million copyright  infringement action alleging theft of the ideas for the television show “Six Feet Under.”  After we won summary judgment on the ground that any similarities to the plaintiff’s screenplay were too abstract to be copyrightable, the Ninth Circuit affirmed in a published opinion that is now the leading articulation of the proper procedure for evaluating such claims in a television or motion picture context.

We successfully defended The Walt Disney Company and Pixar Animation in an appeal from the dismissal of a copyright and unfair competition action relating to the hit movie “Finding Nemo.”  The Ninth Circuit unanimously affirmed.

CRIMINAL LAW

We obtained reversal of an individual white-collar conviction in the Second Circuit where our client was charged with violating the Iranian trade embargo and operating an unlicensed money transmitting business based on his receipt of family funds sent from Iran through an informal money transfer system called a hawala.  The court held that the ITR do not unambiguously prohibit non-commercial remittances, including family remittances, between the United States and Iran, and that the district court had erred by improperly equating operation of a hawala with operation of a money transmitting business.  Although the Government could have sought a new trial after remand, we convinced the Government to dismiss the remaining charges.

We represented Marissa Alexander, a domestic violence victim, in obtaining reversal of her conviction for aggravated assault with a deadly weapon and attendant 20-year mandatory minimum sentence for firing a warning shot to protect herself from her enraged spouse.  Florida’s First District Court of Appeal agreed with our contention that the jury instructions regarding Ms. Alexander’s claim of self-defense were flawed, depriving Ms. Alexander of a fair trial.  Following the appeal, we continued to represent Ms. Alexander, eventually negotiating a plea deal that reduced her sentence from twenty years in prison to two years’ community monitoring and time served.

We represented Adam Miranda, an inmate who had been on death row since 1982.  After two decades of post-judgment litigation, we persuaded the California Supreme Court to grant a writ of habeas corpus vacating the death penalty imposed on Mr. Miranda based on exculpatory evidence that the prosecution failed to produce.  Although the Court ordered a new penalty phase, the State declined to again seek the death penalty.

ENVIRONMENTAL LAW

We won a major federal preemption decision for Entergy in the Second Circuit, which held that the Atomic Energy Act barred Vermont’s effort to prevent continued operation of the Vermont Yankee plant for reasons of nuclear safety.  After prevailing in a bench trial by demonstrating that state lawmakers had acted with a purpose to regulate nuclear safety (a field reserved to the federal government), we successfully defended that victory on Vermont’s appeal to the Second Circuit, securing a unanimous affirmance. 

We also represented Entergy before the Vermont Supreme Court, obtaining dismissal of an original complaint seeking a shutdown of the Vermont Yankee Nuclear Power Station, on grounds that no equitable grounds for relief existed.   

We obtained five significant Ninth Circuit victories for Shell,defeating petitions for review challenging the Bureau of Ocean Energy Management’s approvals under the Outer Continental Shelf Lands Act of Shell’s plans for gas and oil exploration in Alaska’s Camden Bay and Chukchi Sea and related challenges to EPA’s issuance of Clean Air Act permits.  The court held, among other things, that the agencies were entitled to significant deference when interpreting the relevant statutes, interpreting their own regulations, and making certain technical and scientific assessments. 

We represented the Alliance of Automobile Manufacturers in one of the highest-stakes appellate and environmental litigation matters in years, helping to obtain a ruling in the D.C. Circuit that nationwide greenhouse gas emission standards for automobiles, on which our client had already relied in constructing their 2012 model year fleet, would survive a challenge from a host of states and other industry groups.

GOVERNMENT AND REGULATORY LAW

We represented the Metropolitan Water District of Southern California in a successful appeal of a decision invalidating its rates for the conveyance of water and awarding the rate challenger, the San Diego County Water Authority, more than $235 million in damages for breach of a contract to charge a lawful conveyance rate. On the central issue in dispute, we obtained a complete reversal in a decision upholding key components of Metropolitan’s rate structure and reducing the monetary judgment by 85%.

PATENTS

We represented the leading tire repair kit manufacturer in a case against a foreign competitor involving the foreign competitor’s sales of patent infringing products to third parties outside of Germany. These third parties sold these products in Germany and the Supreme Court held that our client’s competitor can be held liable for these sales, overturning the Court of Appeals’ decision on this issue.

We represented Marvell Technology Groupin its appeal from the largest patent infringement verdict in U.S. history.  The Federal Circuit sided with Marvell in reversing the district court’s finding of willful infringement, and vacating $1.25 billion in damages based on the rule against extraterritorial application of U.S. law.

We obtained a complete reversal in the Federal Circuit of an $85 million judgment of patent infringement against Google.  Plaintiff SimpleAir, Inc. had sued Google, Microsoft, and numerous other providers of smartphones and software, claiming its patents covered the technology used to send notifications to mobile devices.  Google, while represented by previous counsel, had been found by two juries to infringe and to owe $85 million in royalties.  On our successful appeal, the Federal Circuit reversed the district court’s key claim construction ruling.

We represented Google, AOL, IAC, Target,and Gannett in litigation accusing Google’s AdWords and AdSense systems of patent infringement.  We obtained reversal of a jury verdict of infringement and validity and an award of $30.5 million in damages.  The Federal Circuit held that all of the asserted patent claims invalid for obviousness. 

We obtained a complete reversal of a $12 million patent infringement judgment on behalf of Yahoo!.  The plaintiff alleged that a Yahoo! Instant Messenger feature infringed a patent on displaying advertisements in the background of electronic messages.  The trial resulted in a finding of willful infringement and no invalidity, and the district court ordered a 23% ongoing royalty.  We were retained for that appeal and persuaded the Federal Circuit that the district court erred by not resolving a key claim construction dispute and not granting Yahoo!’s judgment of no infringement as a matter of law.

We represented Bancorp Services in a case where the Federal Circuit reversed a district court’s finding of invalidity of our client’s patent.  In obtaining reversal, our lawyers defeated an opposing appellate team that included two former U.S. Solicitors General.

We obtained a win for our client Samsung in the Federal Circuit vacating a preliminary injunction against Samsung’s Galaxy Nexus on the ground that Apple had failed to show causal nexus to harm.  The court also held that, under the proper claim construction, the Galaxy Nexus likely does not infringe Apple’s ’604 patent.

We represented TransWeb in the defense of patent infringement claims asserted by 3M and the pursuit of antitrust claims against 3M.  We first obtained a unanimous jury verdict that 3M’s asserted patent claims were invalid, not infringed, and (in an advisory capacity) unenforceable due to inequitable conduct.  The jury also found that 3M violated the antitrust laws by attempting to enforce fraudulently obtained patents against TransWeb, awarding approximately $26 million in lost profits and trebled attorneys’ fees as antitrust damages.  The district court adopted the jury’s advisory verdict that 3M had committed inequitable conduct rendering the asserted patents unenforceable.  We then persuaded the Federal Circuit to unanimously affirm the judgments in full—including the finding of inequitable conduct and award of trebled attorneys’ fees as antitrust damages.

We represented Google, Motorola, and HTC in an appeal to the Federal Circuit in a case involving patents for compiling and converting high-level computer languages such as Java to run on smart cards and microcontrollers.  We persuaded the district court to adopt a favorable claim construction, and then to grant summary judgment to the defendants.  The Federal Circuit affirmed in both respects, unanimously adopting our argument that, while claim construction and invalidity are separate analyses, the claims of a patent cannot be construed to cover prior art that the patent distinguishes.

We also represented Motorola in a case against Apple concerning intellectual property for mobile phones and wireless communication.  Motorola sued Apple for infringing patents considered essential to the practice of cellular and wifi standards, and Apple in turn claimed that Motorola infringed Apple’s patents.  Sitting by designation in the district court, Seventh Circuit Judge Richard Posner construed various patent claims, granted summary judgment concerning some patents, and dismissed the remaining claims on the ground that both sides’ damages experts had been excluded and that injunctive relief was not available.  On appeal, the Federal Circuit affirmed several claim constructions that were favorable to Motorola, reversed the district court’s exclusion of Motorola’s primary damages expert, and held (in accord with our legal argument) that there is no per se rule barring injunctions for standards essential patents. 

We secured a key victory in the Federal Circuit for our client Avanir Pharmaceuticals, Inc., an innovator pharmaceutical company, in a “bet-the-company” Hatch-Waxman patent litigation relating to Avanir’s flagship Nuedexta® product.  The district court ruled in Avanir’s favor, which allowed patent protection for Nuedexta® until 2026.  Our adversary appealed, but we persuaded the Federal Circuit to affirm the judgment—in a summary Rule 36 order issued on the next business day after oral argument. 

We represented The Dow Chemical Company in a Federal Circuit appeal of a jury verdict we obtained in Dow’s favor in a patent infringement litigation against Nova Chemicals Corp. and Nova Chemicals Inc.  Including prejudgment interest, Dow was awarded $76 million in damages.  The Federal Circuit affirmed the judgment in Dow’s favor, and the Supreme Court denied Nova’s petition for a writ of certiorari.

We also represented Dow in a separate but related action, in which Nova raised allegations of perjury and falsified evidence in order to accuse Dow and its counsel of obtaining the earlier infringement judgment through fraud.  We convinced the district court to dismiss Nova’s complaint with prejudice, and persuaded the Federal Circuit to issue a summary Rule 36 affirmance.  We subsequently convinced the Federal Circuit to affirm an award of attorneys’ fees against Nova under Section 285 of the Patent Act.

We successfully defended Genentech in high-stakes patent litigation brought by Sanofi-Aventis.  Sanofi-Aventis sought damages on Genentech’s Rituxan® and Avastin® products, which earn billions of dollars in annual revenues.  After we secured a writ of mandamus from the Federal Circuit transferring the case to the Northern District of California—in an opinion now routinely cited in transfer motions—the district court granted summary judgment of non-infringement, which the Federal Circuit affirmed.

We represented Forest Laboratories and H. Lundbeck in a patent infringement action brought by Infosint in the Southern District of New York regarding the manufacture of their antidepressant drugs CELEXA® and LEXAPRO®, which had over $2 billion in annual U.S. sales.  We convinced the district court to rule that no reasonable jury could fail to find the asserted patent invalid as obvious.  The Federal Circuit affirmed.

We represented Nike in defending a $40 million design-patent and trade-dress action brought by a rival over the translucent heel piece on Nike’s Air Jordan XVII shoe.  After our consumer survey persuaded the plaintiff to dismiss its trade-dress claim, the court adopted our proposed claim construction on the heel design and granted summary judgment of non-infringement.  Following a nearly hour-long argument centered on the use of broken lines to signify boundaries in design patents, the Federal Circuit affirmed.

TRADEMARKS AND TRADE SECRETS

We represent a Russian government agency, Federal Treasury Enterprise Sojuzplodoimport (FTE), which is seeking to establish that it is rightful owner of the world-famous Stolichnaya trademarks.  The district court dismissed FTE’s trademark infringement claims for lack of standing, ruling that the Russian Government’s assignment of its ownership interest in the trademarks to FTE violated Russian law and was therefore invalid.  We obtained unanimous reversal in the Second Circuit, which held that the district court violated principles of international comity and the act of state doctrine by even considering the validity of the Russian Government’s actions under Russian law.  The court of appeals thus reinstated FTE’s trademark infringement claims.

On behalf of Mattel, we obtained a complete reversal in the Ninth Circuit of a $172.5 million judgment entered against Mattel following a jury verdict on a trade-secrets misappropriation claim raised by toy company MGA Entertainment.  The Ninth Circuit agreed with Mattel that MGA’s trade-secrets claim, which was raised as a “counterclaim-in-reply,” was procedurally barred because it was not a “compulsory” response to any claim Mattel had raised, and therefore “should not have reached this jury.”  The Ninth Circuit thus vacated the judgment and remanded with instructions to dismiss the claim.

We obtained a Ninth Circuit reversal for our client Moldex in an important appeal concerning when a color is eligible for trademark protection.  Moldex sued its competitor McKeon for infringing Moldex’s registered trademark on a distinctive yellow-green color for earplugs.  The district court granted summary judgment to McKeon, reasoning that because the color has some function (to allow for easy visibility), it is per se ineligible for trademark protection.  In a 2-1 decision, the Ninth Circuit reversed, holding that the fact that a color has some function does not defeat trademark eligibility so long as other colors are available to perform the same function. 

We represented George V and Creative Designs, owners of the world-famous (and federally-registered) BUDDHA-BAR trademark and proprietary restaurant concept, in a case they brought against their former licensee for trademark infringement and dilution regarding the unauthorized use of the BUDDHA BAR trademark and concept in connection with a Manhattan restaurant.  The New York Appellate Division, First Department, reversed the trial court’s denial of our clients’ motion for preliminary injunction and held that the small disclaimer placed on defendant’s website was not sufficient to dispel likely consumer confusion.

We won an appeal in the Third Circuit on behalf of LendingTree arising from a trademark and false advertising suit filed by a competitor to shut down LendingTree’s marketing of an innovative online real estate broker network.  Presenting an issue of first impression in the Third Circuit, we persuaded the court to adopt a modified version of the doctrine of “nominative use” as a defense to trademark infringement, resulting in the vacatur of a preliminary injunction issued by the district court. 

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