Its lawyers have achieved success for the Firm’s clients in cases before the U.S. Supreme Court, federal courts of appeals and administrative agencies, state supreme and appellate courts, and numerous international tribunals. In the past five years alone, S&C lawyers have argued 10 times in the Supreme Court and dozens of times in other federal and state appellate courts.
These cases have spanned the Firm’s practice areas, including:
- corporate and securities,
- criminal procedure,
- false claims,
- intellectual property,
- labor and employment,
- products liability, and
- tax law.
Clients turn to S&C for their high-stakes appeals because of the Firm’s extensive appellate expertise and its deep understanding of their industries, issues and concerns. What sets S&C’s appellate practice apart is that its lawyers have handled virtually every phase of civil and criminal litigation on behalf of clients.
In addition to arguing and briefing cases in the U.S. Supreme Court and federal courts of appeals, S&C lawyers have also tried and arbitrated cases, conducted internal investigations, and represented clients in governmental investigations. Because of that broad experience, they are able to work collaboratively with trial teams to frame arguments persuasively at any level.
S&C’s appellate practice draws on the experience of 15 former U.S. Supreme Court clerks and more than 130 clerks to judges on all 13 federal courts of appeals and many state courts and international tribunals.
SELECTED REPRESENTATIONSRecent appellate practice experience includes representations of:
- Standard Chartered Bank, as it prevailed before the New York Court of Appeals in October 2014, when that court reaffirmed the continuing vitality of New York’s separate-entity rule. In 2002, Motorola sued Turkish business partners and eventually obtained a judgment of more than $2 billion, some of which remains unsatisfied. In 2013, Motorola served a restraining order on the New York branch of Standard Chartered, seeking to restrain any assets of more than 100 parties at all Standard Chartered’s branches around the world that were allegedly affiliated with the judgment debtors. Standard Chartered found $30 million in deposits in the name of one alleged affiliate, froze those deposits and filed a motion in the U.S. District Court for the Southern District of New York to lift the restraint. The district court granted Standard Chartered’s motion on the basis of the separate-entity doctrine. On appeal, the U.S. Court of Appeals for the Second Circuit certified the issue to New York’s highest court, which held that the separate-entity rule precludes the service of a restraining order on the New York branch of an international bank from imposing a restraint on its foreign branches.
- Goldman, Sachs & Co., as it prevailed before the U.S. Court of Appeals for the Ninth Circuit in March 2014 and the Second Circuit in August 2014 in the enforcement of forum-selection clauses requiring claims against Goldman Sachs concerning auction-rate securities to be brought in federal court. The city of Reno, Nevada, instituted a Financial Industry Regulatory Authority (FINRA) arbitration against Goldman Sachs, which the district court declined to preliminarily enjoin. The Ninth Circuit reversed and remanded, however, finding that the forum-selection clause in the parties’ broker-dealer agreements precluded Reno from invoking FINRA arbitration. In a similar case, Golden Empire Schools Financing Authority, a municipality located in California, also brought a FINRA arbitration against Goldman Sachs. This time, the district court granted Goldman Sachs’s motion for a preliminary injunction on the basis that forum-selection clauses in the parties’ broker-dealer agreements required the suit to be brought in the Southern District of New York. The Second Circuit affirmed. The city of Reno has filed a petition for certiorari, which remains pending before the U.S. Supreme Court.
- Porsche, as it prevailed before the Second Circuit in August 2014, in a high-profile federal securities litigation brought against it by a group of hedge funds seeking more than $2.5 billion in connection with Porsche’s acquisition of a stake in Volkswagen. The hedge funds’ claims were dismissed.
The New York Times and The Wall Street Journal reported on this victory. The American Lawyer noted in its March 2011 “Big Suits” column that the win “removes a roadblock to the planned merger between Porsche and VW.” The American Lawyer also recognized the Firm as an honoree for “Global Dispute of the Year: U.S. Litigation” in its inaugural Global Legal Awards (2013) for representation of Porsche in these matters.
- British Airways, as it prevailed before the Ninth Circuit in June 2014 in securing a victory in an appeal arising out of the settlement of a consolidated antitrust class action concerning passenger fuel surcharges. After the district court rejected claims on the settlement fund by cruise operator Carnival, Carnival appealed to the Ninth Circuit. A ruling that Carnival was a class member would have substantially increased British Airways’ obligations under the settlement fund by permitting cruise operators to make claims. The Ninth Circuit affirmed the denial of the motion to enforce settlement agreements brought by Carnival against British Airways and co-defendant Virgin Atlantic Airways.
- HSBC Bank USA, as it prevailed before the U.S. Court of Appeals for the District of Columbia Circuit in June 2014, when that court upheld the denial of a motion that sought more than $2.7 billion in sanctions against HSBC. Plaintiffs previously obtained a judgment against Iran arising from the 1983 bombing of a U.S. Marine barracks and subsequently served HSBC with interrogatories intended to identify any Iranian funds or transfers. They later moved for sanctions against HSBC, alleging that HSBC had failed to disclose details of relevant transactions in response to the interrogatories. The district court concluded, and the D.C. Circuit affirmed, that HSBC’s responses were not sanctionable.
- UBS, as it prevailed before the Second Circuit in May 2014, when the court affirmed the dismissal of what The American Lawyer called a “mammoth” securities class action by UBS shareholders that acquired shares outside the United States arising out of UBS’s subprime losses and involvement in U.S. customer tax evasion. This decision eliminated billions of dollars of potential liability and established important precedent on the extraterritorial effect of U.S. securities laws.
- JPMorgan Chase, as it prevailed before the Second Circuit in March 2014, when the court dismissed more than 40 putative class-action consolidated lawsuits alleging a conspiracy to manipulate the silver futures market in violation of the Sherman Act and the Commodity Exchange Act.
- Microsoft, as it prevailed before the U.S. Court of Appeals for the Tenth Circuit in September 2013 in the company’s long-running antitrust battle with Novell. After an eight-week trial led by S&C, the district court granted Microsoft’s post-trial motion for judgment as a matter of law, which dismissed Novell’s $4 billion suit. On appeal, the Tenth Circuit affirmed that dismissal and agreed with the district court that Microsoft had not engaged in anticompetitive conduct. Microsoft also prevailed before the Fourth Circuit, which affirmed the dismissal of more than $10 billion in claims by indirect purchasers of its software.
- JPMorgan Chase, as it prevailed before the D.C. Circuit in May 2013, when that court refused to let creditors intervene in a dispute over Washington Mutual Bank’s obligation to repurchase defective loans out of mortgage-backed securities.
- Enbridge, as it prevailed before the Delaware Supreme Court in May 2013, when that court declined to unwind the critical restructuring of an oil pipeline. The Delaware Court of Chancery had dismissed various claims against the defendants and, after two separate arguments on appeal, the Delaware Supreme Court affirmed because there had not been any showing of bad faith.
- Goldman Sachs, as it prevailed before the Second Circuit in March 2013, when that court reversed a lower court order declining to enforce an arbitration agreement with a former employee. Because the issue was whether to carve out an exception to mandatory arbitration provisions for discrimination claims, the case drew the participation of many business and labor advocacy groups, as well as the attention of several national media outlets.
- The St. Joe Company, as it prevailed before the U.S. Court of Appeals for the Eleventh Circuit in February 2013, when that court affirmed the dismissal of a highly publicized shareholder class action concerning real estate valuation and disclosure.
- J.P. Morgan Chase, Bank of America, Société Générale, UBS, Wachovia Bank, and many other of the world’s leading financial institutions, as they prevailed before the New York Court of Appeals in their challenge to the $5 billion restructuring of MBIA Insurance.
- BP and its directors, as they prevailed in multiple appeals before the U.S. Court of Appeals for the Fifth Circuit arising out of the Deepwater Horizon explosion and the ensuing Gulf of Mexico spill. The court of appeals repeatedly affirmed the dismissal of various shareholder, derivative and other class actions.
- Barclays, as it prevailed before the Fifth Circuit in the Enron securities class action—widely considered to be the largest and most complex securities class action ever—when that court reversed class certification. Barclays subsequently obtained summary judgment and dismissal of the claims in the district court.