Appellate
McKenna Long & Aldridge’s Appellate attorneys provide clients with the articulate, skilled, and experienced appellate advocates they need when involved in an appeal. With vast appellate knowledge and experience, this component of our Litigation practice consists of partners and associates who possess the outstanding analytical, brief writing, and oral advocacy skills required to represent clients effectively before the Supreme Court, federal courts of appeals, and state appellate courts.
Our appellate attorneys work on a wide variety of complex legal issues, most notably in areas of constitutional law, federal administrative law, intellectual property law, government contracts law, environmental law, food and drug law, products liability law, antitrust law, and commercial law.
Further strengthening MLA’s Appellate capability is the addition of Luce Forward’s appellate team members who have appeared as lead counsel in cases in the U.S. Courts of Appeals for the Ninth and Federal Circuits and in all districts of the California Court of Appeal. Luce Forward’s appellate attorneys have experience in the California Supreme Court and have handled cases in the U.S. Supreme Court and the Fourth, Sixth, and Tenth Federal Circuits. Their appellate work has included more than 60 published opinions in the last 20 years.
In addition to representing clients in appellate courts and handling appeals and writing amicus curiae briefs, our appellate attorneys often consult with trial teams on key points of strategy in pleadings, motions, and trials.
MLA’s Appellate Group is Routinely Involved in:
- Strategizing appeals
- Preparing certiorari petitions and petitions for review
- Preparing oppositions to certiorari petitions and petitions for review
- Preparing briefs on the merits
- Preparing amicus curiae briefs at both the certiorari petition and merits stages
- Presenting oral arguments
- Preparing interlocutory appeal requests, mandamus petitions, and writs
- Preparing oppositions to interlocutory appeal requests, mandamus petitions, and writs
- Preparing motions to dismiss for lack of appellate jurisdiction
- Preparing procedural motions such as motions to consolidate, extend time & file under seal
- Providing advice on appellate jurisdiction
- Providing advice on appellate rules and procedures
- Providing trial court-level advice on structuring and preserving issues for appeal
- Providing trial court-level advice on making & preserving the record on appeal
- Monitoring trial court proceedings for possible appealable errors
Our lawyers are admitted to practice before the Supreme Court, all federal circuit courts of appeals, and many state appellate courts. When necessary, our appellate lawyers are admitted pro hac vice (i.e., for purposes of a specific case), thereby enabling them to represent clients virtually anywhere in the U.S. where an appeal has been filed.
Representative Engagements
Supreme Court
- Whether Congress can use the Constitution’s Bankruptcy Clause to abrogate the sovereign immunity of state higher education institutions.
- Whether a government contractor can pursue contractual remedies when the United States fails to comply with a congressional procurement policy protecting government contractors against financial risks when performing research and development that is essential to national defense.
- Whether non-appealable interlocutory rulings issued by federal district courts can be afforded offensive non-mutual collateral estoppel effect.
- Whether the federal government can avoid traditional remedies such as restitution when it materially breaches a contract.
- Whether the federal False Claims Act’s qui tam relator provisions are unconstitutional, and alternatively, how federal courts should interpret and apply the statute’s “original source” jurisdictional requirement.
- Whether a court should presume that an arbitrator, not a court, is to decide arbitrability when an arbitration agreement clearly incorporates AAA’s rules, or other nationwide arbitration rules, which empower an arbitrator with sole authority to decide arbitrability (e.g., the “scope” of the agreement).
- Whether the Court of Appeals erred in refusing to affirm a flawed preliminary injunction as an “All Writs Act” injunction where the district court did not discuss the All Writs Act and the enjoined conduct did not threaten the district court’s jurisdiction.
- Whether once a contract with the United States government is properly awarded, the government cannot avoid its financial obligation under that contract by exhausting the general lump-sum appropriation account from which the obligation is to be paid.
- Whether arbitration agreements may alter the judicial review provisions of the Federal Arbitration Act.
- Whether the BlackBerry® wireless email system is used “within the United States” under § 271(a) of the Patent Act even though components crucial to the system’s operation are located outside the United States.
- Whether employees of the State of Alabama may recover money damages because of Alabama’s failure to comply with Title I of the Americans with Disabilities Act.
- Whether federal law preempts state-law tort claims alleging fraud on the Food and Drug Administration during the regulatory process for marketing clearance applicable to certain medical devices.
- Whether the Commerce Clause, Full Faith and Credit Clause, or Due Process Clause mandates that the law of the state of incorporation governs a corporation’s internal affairs, or may the fifty states impose conflicting legal requirements on the internal affairs of other states’ corporations, thereby exposing corporate directors to massive liability for actions that comply with the law of the state of incorporation?
- Whether prosecutors may use the responsible corporate officer doctrine in felony prosecutions of environmental crimes, which effectively would eliminate the government’s burden of proof as to the required mens rea element of these violations and subject corporate officers to strict liability for felony offenses simply by virtue of their corporate positions.
D.C. Circuit
- Whether the SEC Hedge Fund Rule violates the Investment Company Act and Advisors Act.
- Whether the EPA’s Clean Air Act “routine repair and maintenance rule” is a permissible exemption to the Clean Air Act’s New Source Review (NSR) program.
- Whether EPA’s regional haze rules, which would have resulted in no perceptible environmental benefits to the region, but would substantially limit the siting of new power generation sources, violate the Clean Air Act by incorrectly assuming that all large stationary sources (e.g., coal-fueled electric utilities, refineries, portland cement plants, smelters) cause visibility impairment in western national parks and wilderness areas.
- Whether the EPA has the authority to allow states to satisfy EPA’s regional haze rule Best Available Retrofit Technology (BART) requirements by complying with EPA’s Clean Air Interstate Rule (CAIR), thus not requiring sources that do not contribute to visibility impairment to install additional emissions controls.
- Whether the District Court erred by holding the Secretary of the Interior liable for litigation misconduct and fraud on the court for the alleged wrongful acts of other people, and for the means she chose to administer her Executive Branch department.
- Whether the Morgan privilege precludes the District Court and its appointed Special Masters from inquiring into the Secretary of the Interior’s internal deliberations concerning Indian trust reform.
- Whether the District Court erred by holding that it has authority to draw adverse inferences against individual trustees who invoke the attorney-client privilege or work product protection.
- Whether the district court erred by holding that statements linking the plaintiffs to the regime of Slobodan Milosevic and international criminal activities, including money laundering and smuggling weapons to Al Qaeda, were not capable of defamatory meaning, and by dismissing the false light invasion of privacy claim.
- Whether the District Court erred by not applying bars to the statute of limitations (i.e., equitable estoppel, equitable tolling, lulling doctrine) based on the misconduct of appellees and the due diligence of appellants.
- Whether the States of Florida and Alabama may maintain an attack on a settlement agreement between the State of Georgia and the U.S. Army Corps of Engineers concerning the allocation of water storage in Lake Lanier for water supply for the Atlanta region.
- Whether a reasonable jury could find that plaintiff was sexually harassed by her U.S. Navy supervisor and that the U.S. Navy retaliated against her because of her complaints about him (pro bono).
- Whether district court’s order was a judgment within the meaning of Fed. R. Civ. P. 58 (pro bono).
Federal Circuit
- Whether the trial court erred in dismissing a patent infringement suit for lack of personal jurisdiction.
- Whether the Department of Health and Human Services has systematically abused the federal government’s Strategic Sourcing Initiative bulk purchase procurement policy.
- Whether a Department of Veterans Affairs’ decision was a rulemaking subject to the notice and comment provisions of the Administrative Procedure Act.
- Whether, under FAR 49.305-1, higher-tier cost-type contractors can recover fee on the value of subcontract effort delivered prior to a termination for convenience, and (ii) whether the value of delivered subcontractor data items is limited by a pricing and contract management convention, known as the “over and above” principle, set forth in three authorities incorporated into the relevant subcontracts.
- Whether refunds of the unconstitutional Harbor Maintenance Tax must proceed under a jurisdictional provision containing a two-year statute of limitations.
- Whether the Cargo Preferences Act must be construed in consonance with the common law related to price discrimination in common carriage.
- Whether the Harbor Maintenance Tax imposed on domestic shipments violates the Constitution's Uniformity Clause or Port Preference Clause.
First Circuit
- Whether, and to what extent, the Federal Insecticide, Fungicide, and Rodenticide Act preempts state-law tort claims involving the use of pesticides.
- Whether the Medical Device Amendments to the Federal Food, Drug and Cosmetic Act preempted plaintiff’s state common-law claims.
Second Circuit
- Whether the Clean Water Act requires a permit to apply mosquito control pesticides whose use is regulated by FIFRA.
Third Circuit
- Whether a foreign entity that agreed to final and binding international arbitration with a United States company is subject to personal jurisdiction in the United States for an enforcement proceeding arising from that arbitration.
- Whether a plaintiff’s state common law claims against a medical device manufacturer are impliedly preempted by federal law.
Fourth Circuit
- Whether Congress intended federal courts to be the exclusive forum for adjudication of actions that directly implicate the war powers, sovereign immunity, and other fundamental interests of the United States.
Fifth Circuit
- Whether the political question doctrine bars damages claims against government contractors that provide combat-related logistical support services to the U.S. military in Iraq.
- Whether qui tam actions pursued under the False Claims Act in which the government does not intervene violate the constitutional doctrine of separation of powers and whether the qui tam provisions violate the Appointments Clause.
- Whether the Clean Air Act preempts Texas from regulating emissions from construction equipment beyond the requirements imposed by the Clean Air Act.
Seventh Circuit
- Whether local governments are preempted from regulating the sale or use of pesticide products, including fertilizer-pesticide (“weed & feed”) combination products.
- Whether an accrual taxpayer can currently deduct trucking license and insurance fees that for book accounting and financial purposes have been ratably allocated over the periods to which they apply.
Eighth Circuit
- Whether, and to what extent, the Federal Insecticide, Fungicide, and Rodenticide Act preempts state-law tort claims involving the use of pesticides.
- Whether class action should be certified in case involving allegations of price-fixing of genetically modified seeds where plaintiffs could not prove classwide injury with proof common to the class.
Ninth Circuit
- Whether the state secrets doctrine bars litigation challenging a prominent telecommunication company’s alleged assistance to the National Security Agency in connection with an alleged terrorist surveillance program.
- Whether the Federal Insecticide, Fungicide, and Rodenticide Act impliedly preempted California law protecting an original registrant’s proprietary pesticide research data.
- Whether the False Claims Act qui tam provisions created an exception-free first-to-file bar.
- Whether a letter of credit issued by the Bank is “perpetual” and so “stated” and therefore had expired when the beneficiary made a draw more than five years after it was issued.
- Whether a district court has the authority to award costs after denying fees and expenses under the False Claims Act.
- Whether the Clean Air Act preempts local jurisdiction from setting emissions standards on fleets of vehicles.
- Whether petitioner’s sentence under California’s Three Strikes law of twenty-five years to life for felony petty theft conviction violated the Eighth Amendment (pro bono).
- Whether appellant is entitled to recover pension benefits owed to her by her employer under ERISA § 502(a)(1)(b) (29 U.S.C. § 1132(a)(1)(B)) for compensation improperly excluded from her pension calculation (pro bono).
- Whether the Immigration Judge erred in finding that appellant did not qualify as a refugee under section 208 of the Immigration and Nationality Act, when she made no adverse credibility determination regarding any aspect appellant’s testimony and where the government’s documentary evidence corroborated appellant’s well-founded fear of persecution (pro bono).
Tenth Circuit
- Whether CERCLA’s comprehensive natural resource damages scheme preempts any state remedy designed to achieve something other than the restoration, replacement, or acquisition of the equivalent of a contaminated natural resource.
- Whether, in an interlocutory appeal, the lower court properly rejected the defense of qualified immunity for a police officer’s illegal frisk of individual at premises of nonprofit organization during search warrant execution.
- Whether final judgment of a trial court reducing jury’s verdict to nominal damages because of fundamental failure of plaintiff’s trade secrets case on causation should be upheld on appeal.
- Whether overtime should have been paid to former employees of a company working in the military recruitment area under the Fair Labor Standards Act.
Eleventh Circuit
- Whether defendants that possessed anthrax had a duty to protect the general public against third-party misconduct.
- Whether a Georgia act designed to prohibit certain lending practices was not preempted by the Federal Deposit Insurance Act.
- Whether the Bankruptcy Code requires that an order pre-approving compensation of a professional at the time the court approves its retention by a debtor pursuant to Bankruptcy Code Section 328 must expressly refer to Section 328 or, rather, whether the “totality of the circumstances” standard is the proper standard to apply to determine whether the compensation of a professional has been pre-approved by the bankruptcy court.
- Whether a district court, in an admiralty action, may conclude that a legally intoxicated driver of a boat “could not have been a cause” of a major accident for the purposes of distributing fault.
- Whether federal law preempts state-law tort claims alleging fraud on the Food and Drug Administration during the regulatory process for marketing clearance applicable to certain medical devices.
Alabama
- Whether the trial court erred in granting the plaintiffs’ motion for discovery sanctions, striking all of defendant’s defenses, and entering default judgment against the defendant on the basis that defendant had produced an unknowledgeable and unprepared corporate witnesses under Alabama Rule of Civil Procedure 30(b)(6).
California
- Whether automakers can be held liable for failure to warn when they allegedly knew the industry standard was to build aftermarket brake and clutch parts with asbestos.
- Whether the California Environmental Quality Act (CEQA) prohibits the California Department of Pesticide Regulation from renewing registrations for a pesticide where a petition requesting “re-evaluation” of the pesticide has been filed.
- Whether a plaintiff that sued to compel re-evaluation of a pesticide registration was entitled to attorneys’ fees if the Department of Pesticide Regulation decided to initiate the re-evaluation process.
- Whether, and to what extent, the Federal Insecticide, Fungicide, and Rodenticide Act preempts state-law tort claims involving the use of pesticides.
- Whether a California regulation that authorized the State to use a manufacturer’s proprietary research data, with permission from the owner, for the purpose of issuing a state license that allowed a generic competitor to manufacture and sell a product first licensed by the data owner, may establish a reasonable investment-backed expectation that the data would not be used for this purpose without permission from the data owner, in determining whether a taking occurred in violation of the federal and State constitutions.
Colorado
- Whether the Colorado Mined Land Reclamation Act (MLRA), which prohibits counties from imposing their own mining reclamation standards, preempts a county ordinance which, under the guise of land use planning, bans the use of cyanide and other chemical processing reagents that the MLRA explicitly authorizes and regulates for use in mining reclamation.
Georgia
- Whether by virtue of a hospital’s not-for-profit tax exempt status under federal and/or Georgia law, the hospital owed a legal duty to provide reduced cost care to all uninsured patients (whatever the reason for the uninsured status).
- Whether the conviction and sentencing of a teenager were inconsistent with the General Assembly’s intent to treat consensual teenage sex less harshly than the crime of aggravated child molestation, one of Georgia’s “seven deadly sins” which carries a mandatory 10 year minimum prison sentence (pro bono).
- Whether it was plain error for the trial court to admit evidence of incidental and consequential damages and refuse to charge the jury on the warranty disclaimer.
- Whether future lost wages are not recoverable as damages in a breach of contract action for suspension or expulsion from a school, particularly when there was no evidence the student could not return to the school.
- Whether evidence of previous accidents should be excluded in a products liability case because the prior incidents failed to meet the requirements of the substantial similarity doctrine.
- Whether the trial court, in a local election dispute, erred in dismissing an election contest based on the failure to provide the proper statutory notice (pro bono).
Maryland
- Whether the district court erred in holding that employer breached an at-will employment contract with its employee by changing the employee’s work location, when the employee subsequently reported to work at the new location for two years.
- Whether there was insufficient evidence to sustain defendant’s conviction on three handgun counts (pro bono).
- Whether an out of court tape recorded statement made by a testifying eyewitness to the police shortly after a shooting occurred was properly admitted as a prior inconsistent statement where the trial court concluded that the witness was feigning a lack of recollection of the events of the shooting (pro bono).
Missouri
- Whether the arbitration clause in the 1998 agreement was legally binding and, if so, whether the clause covered the plaintiffs’ claims.
New York
- Whether the forum non conveniens doctrine requires dismissal of a New York personal injury suit against a drug manufacturer where the plaintiffs and the material witnesses reside in Virginia.
North Carolina
- Whether summary judgment in favor of a bank on a guaranty should be reversed because genuine issues of material fact existed as to whether a former corporate officer was acting within his apparent authority and whether the bank was on notice that the officer was exceeding his authority when he signed the guaranty.
Texas
- Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts pesticide-related crop injury claims under state law.
Wisconsin
- Whether, and to what extent, the Federal Insecticide, Fungicide, and Rodenticide Act preempts state-law tort claims involving the use of pesticides.
Additional Representative Matters:
International Gamco, Inc. v. Multimedia Games, Inc., 504 F.3d 1273 (Fed. Cir. 2007). Patent licensees usually cannot sue for infringement, but in this case, the district court created a new theory of licensee standing, potentially subjecting client to multiple suits accusing its technology of violating a single patent. We successfully persuaded the district court to certify its order for interlocutory appeal. The Federal Circuit granted petition to hear the appeal. After briefing and argument, the Federal Circuit not only rejected the new theory, it eliminated the “line of business” theory of licensee standing that the district court extended.
Bilafer v. Bilafer, 161 Cal.App.4th 363 (2008). In this care, we established the right of the maker of an irrevocable trust who retains no financial interest in the trust to have the trust reformed because of drafting error by the attorney who prepared the papers.
Interinsurance Exchange of the Automobile Club v. Superior Court, 148 Cal.App.4th 1218 (2007). In a consumer class action, the superior court ruled that client’s time payment program violated a California insurance premium disclosure statute. This exposed the client to damages of approximately $400 million. We petitioned the Court of Appeal for a writ of mandate reversing the superior court’s determination and compelling the superior court to dismiss the case. The appellate court granted the writ.
San Diego Metropolitan Transit Development Board v. RV Communities, 69 Cal.Rptr.3d 705. Obtained affirmance of a substantial eminent domain judgment on behalf of client. This case involved multiple issues of first impression and boiling controversy in eminent domain law. The California Court of Appeal issued its initial decision affirming the judgment in 2005, but the California Supreme Court granted the public agency’s petition for review, ultimately remanding the case for reconsideration. When the Court of Appeal affirmed again, the California Supreme Court depublished the case as precedent but allowed the result to stand.
Wolf v. CDS Devco – We represented CDS Devco and related companies in a dispute with a disgruntled former director. We successfully obtained a determination that the director had no entitlement to access corporate records and then obtain a published opinion of the California Court of Appeal definitively establishing that former directors have no inspection rights.
International Gamco, Inc. v. Multimedia Games, Inc. Here we represented Multimedia Games, Inc. in a patent infringement case. We obtained the right to interlocutory appeal of an order allowing a licensee to pursue a patent infringement case, then obtained a published decision of the U.S. Court of Appeals for the Federal Circuit dismissing the case and abolishing licensee standing unless the license amounts to an assignment of all patent rights in a geographically substantial part of the U.S.
Advisories
- January 24, 2013
- June 24, 2011
- February 24, 2011