Led by former Acting Solicitor General of the United States Jeff Wall—who has argued more than 30 times before the U.S. Supreme Court—and drawing on the experience of 13 former U.S. Supreme Court clerks and more than 75 former federal circuit court clerks, S&C's Supreme Court and Appellate Practice adeptly handles challenging and high-profile appeals around the country. Our Supreme Court and Appellate lawyers collectively have significant experience before the Supreme Court and scores of other federal and state courts of appeals.
A distinctive feature of our practice is that S&C's appellate lawyers have handled every phase of litigation. They have tried and arbitrated cases, conducted internal investigations, and represented clients in governmental investigations. This broad experience gives them a valuable perspective from which to develop more effective arguments based on their experience in those other contexts, and enables them to work collaboratively with trial teams to frame those arguments persuasively at every stage of a case. Clients appreciate that this structure allows the same teams to handle motions, trials and appeals. Even in matters that S&C has not handled in the initial stages, clients also often seek out our team's tailored appellate expertise, skilled advocacy and strategic advice.
Our appellate experience covers virtually all of our litigation practices, including antitrust, bankruptcy, criminal defense, intellectual property, labor and employment, M&A litigation, products liability and securities litigation.
- BP, in multiple appeals before the U.S. Court of Appeals for the Fifth Circuit stemming from the Deepwater Horizon oil spill
- Goldman Sachs, including before the Supreme Court and the Second Circuit, in one of the most closely watched securities class actions in recent years. The Supreme Court recently ruled 8-1 in favor of Goldman Sachs and remanded a case testing the standards for rebutting the “fraud-on-the-market” presumption of class-wide reliance;
- Stryker, in a U.S. Supreme Court case that addressed the standard to be used for awarding enhanced damages in patent infringement actions
- Volkswagen, as national coordinating counsel in the negotiation of landmark settlements of diesel emissions investigations and litigations, and in the successful defense of those settlements in four appeals to the U.S. Court of Appeals for the Ninth Circuit
- Volkswagen, in securing a reversal and remand from the U.S. Court of Appeals for the Ninth Circuit in a case that will sharply limit the ability of plaintiffs to use the Supreme Court's Affiliated Ute presumption of reliance in securities lawsuits
SELECTED REPRESENTATIONSRecent appellate practice experience includes representations of:
- Stryker Corporation, a Fortune 500 medical technologies firm, as it prevailed before the Supreme Court in a case that addressed the standard to be used for awarding enhanced damages in patent infringement actions. The case arose from the lower court’s finding that Stryker’s competition infringed its patented invention. The lower court trebled Stryker’s damages due to the flagrancy and scope of the infringement. Although the U.S. Court of Appeals for the Federal Circuit upheld the jury’s liability ruling, it vacated the increase in damages. S&C persuaded the Supreme Court to set aside the Federal Circuit’s strict standard as “unduly rigid.” By striking down the standard used by the Federal Circuit, the holding provides greater discretion to district judges in determining when enhanced damages are appropriate. The Supreme Court also held that patent holders need only establish the appropriateness of enhanced damages by a “preponderance of the evidence” rather than “clear and convincing evidence.” Lastly, the Court held that the Federal Circuit should review district courts’ enhancement decisions for abuse of discretion.
- JPMorgan Chase, as it prevailed before the Second Circuit and achieved the dismissal of several derivative actions arising out of the so-called London Whale trading losses. The Court affirmed a dismissal following guidance requested by the Delaware Supreme Court through a rare procedural mechanism. The holding provided valuable precedent for company boards responding to shareholder demands, explaining that it is not necessary in all cases for a board of directors to provide a detailed response to every issue raised in a shareholder demand letter and acknowledged that it is appropriate for a board to consider a variety of factors in deciding whether to refuse a demand, including the potential impact on other litigation of accepting the demand and filing the requested lawsuits.
- Banco Central de la República Argentina (BCRA), as it prevailed before the Second Circuit in August 2015, when the court sided with BCRA against investment funds EM Ltd. and NML Capital Ltd after nine years of litigation. The Second Circuit held that plaintiffs had failed to adequately allege that BCRA is an alter ego of the government and that BCRA qualified for immunity from suit under the Foreign Sovereignty Immunity Act. Weakening the immunity from suit or attachment traditionally enjoyed by foreign instrumentalities, as plaintiffs urged, “could lead foreign central banks, in particular, to ‘withdraw their reserves from the United States and place them with other countries,’” which in turn could have “an immediate and adverse impact on the U.S. economy and the global financial system.”
- The former president of a major U.S. university, in a win before the Superior Court of Pennsylvania, which reversed the trial court and quashed criminal charges of perjury, obstruction of justice, and conspiracy arising out of a scandal at the university. The court agreed that the former general counsel of the university had formed an individual attorney-client relationship with S&C's client in connection with his grand jury appearance, and that she therefore violated his attorney-client privilege when she later testified before the same grand jury. Because her testimony formed a substantial part of Pennsylvania's charges against S&C's client, the Superior Court concluded that those charges had to be dismissed.
- Cuozzo Speed Technologies LLC, before the U.S. Supreme Court, challenging the U.S. Patent and Trademark Office’s implementation of the America Invents Act’s new post-grant proceedings. Cuozzo was the first company to have its patent invalidated under the America Invests Act review standards. The case concerns the balance between the federal courts’ role in patent litigation and the Patent Trial and Appeal Board’s administrative role in patent challenges.
- 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.
- U.S. Chamber of Commerce, as it prevailed before the U.S. Court of Appeals for the Third Circuit in a case involving the Video Privacy Protection Act of 1988, which was passed to protect consumers’ privacy in their rental records held by video stores. The Third Circuit agreed with S&C’s arguments that the statute should not be interpreted to preclude online content and service providers from sharing anonymous user data with advertisers, a practice which undergirds much of the internet economy.
- 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.
- Vornado Realty, as it prevailed before the New York Supreme Court, obtaining the dismissal of a complaint in its entirety that arose out of the sale of a development in Harlem. The plaintiffs sought up to $18 million in compensation in connection with the sale of the development. Plaintiffs argued that the costs Vornado and another developer incurred to acquire the property did not qualify as “capital contributions” under the contract governing the development, and thus some of the sale proceeds should be distributed under the contractual distribution mechanism. The court rejected that argument, as well as the plaintiffs’ other “unavailing” claims, and thus dismissed the case. Plaintiffs appealed that decision to the Appellate Division, First Department, which affirmed the Supreme Court’s decision in its entirety.
- 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.
- 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.
- 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.
- UBS, as it prevailed before the New York Appellate Division, First Department, to affirm a decision of the New York Supreme Court, Commercial Division, dismissing on forum non conveniens grounds a $30 million suit brought by Korean plaintiff Hanwha Life Insurance. At issue was Hanwha’s 2007 purchase of a credit-linked note structured by UBS in Hong Kong, but referencing a CDO allegedly structured by UBS in New York. In affirming, the First Department held that UBS had met its burden of demonstrating that the action lacked a substantial New York nexus. The win is particularly notable given that this decision goes against prior decisions in federal court and in New York Supreme Court involving nearly identical securities and allegations. In November 2015, the New York Court of Appeals denied plaintiffs’ motion for leave to appeal.
- 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.
- 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. S&C recently secured a dismissal of all of the derivative litigation and persuaded the court in the securities class action to dismiss the class-action claims of non-U.S. shareholders and deny class certification to the longer of two proposed classes—dramatically reducing the potential exposure for BP. In September 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed the denial of class certification and in May 2016 S&C convinced the Supreme Court not to take plaintiffs’ appeal.
- ING Bank, as it prevailed before the Second Circuit in a civil victory dismissing a $4.9 billion federal RICO and fraudulent conveyance claim filed in the Southern District of New York in connection with ING’s conduct that was the subject of a $619 million criminal sanctions settlement that S&C had previously negotiated for ING.
- 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.