APPELLATE AND SUPREME COURT LITIGATION

Transcription

1 APPELLATE AND SUPREME COURT LITIGATION RECOGNIZED BY Our Clients Public and private companies, trade associations, and others across industries and throughout the country count on Katten's Appellate and Supreme Court Litigation practice to tackle their most challenging cases and issues in state and federal trial and appellate courts. Our experienced appellate advocates regularly team with colleagues in other practices to handle critical legal issues from appellate briefs to dispositive trial motions. Our Services Katten represents clients in high-stakes appeals involving a broad range of legal subjects and industries, including environmental and workplace safety, intellectual property, real estate, health care, media, consumer class action, white collar criminal defense, and many others. Our Appellate and Supreme Court Litigation practice includes more than two dozen former law clerks to federal and state appellate judges, as well as attorneys who obtained substantial appellate and critical motions experience as members of US Attorneys' Offices and the US Department of Justice. Combined, the members of our Appellate and Supreme Court Litigation practice have briefed and argued hundreds of appeals, including actions in all 13 US courts of appeals and numerous state supreme and intermediate appellate courts. In addition to handling cases on appeal, the members of our practice are fully integrated into our trial teams as well as teams advocating before administrative agencies. We draft dispositive motions, prepare favorable jury instructions, assist with the development of the record, and advise on how best to position our clients' cases for success on appeal whether the case arises from a state or federal trial court, a rulemaking proceeding or a permitting action. Clients also hire us following wins or losses, recognizing that appellate advocacy is a separate discipline that frequently requires specialized training and skills distinct from those honed in trial courts or before administrative agencies. Indeed, Katten attorneys have served in every possible role at the appellate stage from serving as national appellate counsel for a Fortune 500 company coordinating and leading appeals in eight federal circuits across the country, to being hired either to take over the entirety of high-profile appeals from other law firms or to serve as co-counsel in the appellate court alongside trial counsel, to remaining behind the scenes offering strategic advice, drafting and editing briefs, and preparing other counsel for oral argument. Our goal is simple: to use our appellate advocacy experience to secure victories for our clients when the stakes are highest. Environmental and Workplace Safety Katten attorneys are routinely at the forefront of highprofile, cutting-edge cases that are shaping

2 environmental law across the country. Members of the Appellate and Supreme Court Litigation practice work closely with our colleagues in the Environmental and Workplace Safety practices in bet-the-company administrative and trial proceedings, including a federal criminal trial in which we drafted critical motions and a first-of-its-kind jury instruction that served as a cornerstone of our client's defense and helped secure verdicts of not guilty on all charges. Intellectual Property Katten attorneys have built one of the nation's premier intellectual property practices and have maintained that distinction at the appellate stage. Our appellate litigators have handled dozens of cases before the US Court of Appeals for the Federal Circuit that have originated from federal district courts, the US Patent and Trademark Office including the Patent Trial and Appeal Board and the International Trade Commission. Our team represents US and international clients across industries including biotechnology, pharmaceuticals, life sciences, electronics, software, e- commerce and telecommunications. Our clients have trusted Katten's appellate experience in cases involving products and services that have generated billions of dollars in sales. Katten attorneys litigate appeals at the forefront of trademark and copyright law. We have protected on appeal some of the world's most famous brands, including those of Microsoft Corporation, Bausch & Lomb and E! Entertainment. Katten attorneys also have litigated precedent-setting copyright cases, including an appeal in the Seventh Circuit on behalf of the Recording Industry Association of America against a file-sharing network that had allowed users to exchange unlawfully millions of copyrighted works. Commercial/Real Estate Katten has a strong track record handling general commercial and real estate litigation on appeal. Our lawyers regularly handle sophisticated commercial contract and property disputes in various state and federal appellate courts. In a case involving a major mixed-use development, for example, Katten successfully defended against a request for injunctive relief in district court, which the Fourth Circuit then affirmed on appeal in an important, precedential opinion. And as another example, our lawyers helped a retail center preserve its rights to bring state law trespass and nuisance claims against union members engaged in a secondary boycott on the center's property through a successful appeal before the Ninth Circuit involving the intersection of federal preemption, labor law, property rights and state constitutional law. Securities and Financial Services Clients regularly call on Katten in securities and financial services cases when the stakes are highest. To cite just one example, in a case characterized by a panel of the Sixth Circuit as one of "Dickensian proportions," Katten litigators saved a client from a contempt finding for the client's role in an asset sale that had been enjoined by the district court. As another example, Katten attorneys briefed and argued an important case involving the rights of secured lenders, successfully defending the dismissal of a complaint against the firm's client. The decision, written by the First Department in Manhattan, included powerful language reaffirming a secured lender's ability to engage in negotiations and preserve its rights to declare a default, noting that "a contrary holding could have a chilling effect on parties' willingness to renegotiate mutually acceptable terms rather than simply foreclose on collateral or resort to costly litigation." Consumer Class Action Katten is at the forefront of assisting clients before state and federal appellate courts in enforcing the terms of their class action waivers, consumer arbitration agreements and forum selection clauses, resulting in the avoidance of class action lawsuits. One of our victories was a unanimous decision from the Missouri Supreme Court, which held that the presence of a class action waiver is not, standing alone, grounds for finding "unconscionable" an arbitration agreement governed by the Federal Arbitration Act. We also regularly represent consumer lenders on appeals to enforce choice-of-law provisions in consumer loan contracts, often in cases in which Katten did not serve as trial counsel. Health Care We are frequently called upon by hospital systems, academic medical centers, large independent medical practices, medical associations and patient safety organizations to handle appeals involving issues of first impression in state and federal appellate courts. For example, our appellate litigators have briefed and argued the highest-profile cases interpreting state

3 physician self-referral laws. In one such case, in which our clients garnered extensive amicus curiae support from national medical societies, we convinced the Supreme Court of Washington that orthopaedic surgeons and other physicians are permitted to employ physical therapists in their medical practices. On another novel issue, we filed an amicus curiae brief in the Kentucky Supreme Court on behalf of 30 patient safety organizations regarding the Patient Safety Act's preemption of state laws governing access to hospital records generated in connection with quality improvement activities, and the scope of the protection for such documents in medical malpractice cases. Our appellate litigators have argued and won cases in a number of federal appellate courts. For example, Katten attorneys prevailed in the Fourth and Sixth Circuits in complex administrative law and constitutional cases that secured tens of millions of dollars in premiums for health benefit plans. We also secured a victory worth $180 million on behalf of 76 New York-area hospitals when the Second Circuit, while upholding the Centers for Medicare & Medicaid Services' (CMS') adoption of new Metropolitan Statistical Areas, held unlawful a determination by CMS to phase in a congressionally mandated Occupational Mix Adjustment. Further, our litigators have handled a number of complex False Claims Act cases, including an appeal before the Second Circuit involving allegations of fraudulent billing to a variety of federal health care programs. In each case, we have drawn on our appellate experience to enhance our nationally recognized Health Care practice. Supreme Court Practice Clients routinely call upon our appellate litigators to brief their most important cases in the US Supreme Court, whether it be the filing of a petition for a writ of certiorari, an opposition to certiorari or at the merits stage. The same breadth of subject matter experience we employ in litigating cases in the state and federal appellate courts extends to our work in the US Supreme Court. In the last several years, our appellate litigators have briefed novel issues of administrative, patent, tax, bankruptcy, trademark and environmental law at the certiorari and merits stages for both parties and amici curiae. In one such case, our appellate litigators were successful in obtaining from the Supreme Court the vacatur of an adverse appellate decision issued by the Federal Circuit, which ultimately led to a complete victory for our client in a closely watched tax case. And in cases presenting complex issues of bankruptcy and constitutional law, our petitions for writ of certiorari have been identified by a leading Supreme Court website as "Petition[s] of the Day." In addition, trade associations, industry groups and other clients often call upon our appellate litigators to prepare amicus curiae briefs in high-profile Supreme Court cases at both the certiorari and merits stages. Pro Bono Consistent with Katten's commitment to pro bono service, our appellate litigators devote their time, resources and talent to serving individuals and organizations in need of representation in the state and federal appellate courts and in the US Supreme Court, often teaming with prominent public interest organizations. Through a direct appointment by the US Court of Appeals for the Second Circuit, Katten attorneys handled an appeal on behalf of a transgender ironworker and developed arguments, credited by the Second Circuit, that helped to establish important protections for transgender union members under the National Labor Relations Act. In partnership with the American Civil Liberties Union and Lambda Legal, Katten attorneys also won in the Seventh Circuit a challenge to a Wisconsin statute that specifically restricted funding for certain medical procedures such as hormone therapy for transgender prisoners and then successfully opposed a petition for a writ of certiorari to the US Supreme Court in that case. In addition, on behalf of the Law Center to Prevent Gun Violence, various municipalities, and local gun safety organizations, Katten attorneys have filed amicus curiae briefs in the US Courts of Appeals for the Second, Fourth, Seventh, Ninth, and Tenth Circuits, and the Illinois Supreme Court in defense of the constitutionality of assault weapons bans enacted by the States of Colorado, Connecticut, Maryland, and New York, Cook County (Illinois), and the municipalities of Sunnyvale, California, and Highland Park, Illinois. We have defended the Fourth Amendment rights of parolees in a case in the Second Circuit, and we have helped multiple asylum applicants who face torture or other forms of persecution if returned to their home countries appeal their cases to the Fifth, Seventh and Ninth Circuits, often working in conjunction with the National Immigrant Justice Center to protect the interests of the asylum applicants.

4 Our Experience Health Care Representation of the Washington State Orthopaedic Association and an orthopaedic practice in the Supreme Court of Washington in a case that protected the rights of orthopaedic surgeons to employ physical therapists in their medical practices and refer patients to those therapists for treatment. With more than two dozen state and national medical associations joining the case as amici curiae, the Court held in favor of our clients that physician employment of physical therapists and related patient referrals are lawful under Washington's anti-rebate statute, professional service corporation act and common-law corporate practice of medicine doctrine. The unanimous ruling has had broad implications across the country for protecting physician-owned physical therapy services and other ancillary health care services furnished in physician offices. Columbia Physical Therapy, Inc. v. Benton Franklin Orthopedic Associates, PLLC, et al., 168 Wash. 2d 421 (Wash. 2010). Representation of petitioner medical group practices in the Maryland Court of Appeals (the state's highest court) in a case interpreting the Maryland Patient Referral Law on the issue of whether treating physicians in the fields of orthopaedics, urology, gastroenterology, cardiology and emergency medicine are permitted to furnish patients with medically necessary MRI and CT services within the medical office setting. Potomac Valley Orthopaedic Associates, et al. v. Maryland State Board of Physicians, et al., 417 Md. 622 (Md. 2011). Representation of 76 New York-area hospitals in the US Court of Appeals for the Second Circuit in a case that, while upholding the Centers for Medicare & Medicaid Services' (CMS) adoption of new Metropolitan Statistical Areas, held unlawful a determination by CMS to phase in a congressionally mandated Occupations Mix Adjustment. The victory was worth $180 million to our clients. Bellevue Hosp. Center v. Leavitt, 443 F.3d 163 (2d Cir. 2006). Representation of 30 patient safety organizations as amici curiae in the Kentucky Supreme Court in litigation regarding the Patient Safety and Quality Improvement Act's preemption of state laws governing access to hospital records generated in connection with quality improvement activities and the scope of the protection for such documents in medical malpractice cases. The Court ruled that post-incident health information was not privileged under the Act. Tibbs v. Bunnell, --- S.W.3d ---, No SC , 2014 WL (Ky. Aug. 21, 2014). Representation of a 50-doctor physician group practice in litigation before Maryland's intermediate and highest appellate courts in which a variety of competitors sought to challenge a consent agreement, entered between the group practice and the Maryland Board of Physicians, which declined to find a violation of the group's referrals of patients for radiation therapy services under the Maryland Patient Referral Law. The state's highest court denied so-called bypass review, and the state's intermediate appellate court affirmed the dismissal of the litigation. Blumberg v. Md. Bd. of Physicians, Nos (Md.), (Md. Ct. Sp. App.). Representation of the New York City Department of Education in an appeal before the US Court of Appeals for the Second Circuit involving liability under the False Claims Act based on allegations that the Department fraudulently billed Medicaid for certain services provided to disabled schoolchildren. The Second Circuit affirmed the dismissal of the relators' claims in an unpublished decision. United States ex rel. Doe v. N.Y. City Dep't of Educ., No (2d Cir.). Copyright and Trademark Representation of NBCUniversal in the California Court of Appeal in a case granting a rarely issued peremptory writ of mandate directing the trial court to grant summary judgment for our clients. The opinion creates important new precedent in the entertainment industry on the statute of limitations defense applied to idea submission claims. The court ruled that plaintiffs' claims accrued and the statute of limitations began to run no later than the date the Ghost Hunters television series was first released to the public and that neither the discovery rule nor the continuous accrual doctrine could extend the accrual date past the initial telecast of the first episode of the series. This is the first-known published opinion applying the statute of limitations

5 on idea submission claims to episodic television. NBCUniversal Media, LLC v. Superior Court, 225 Cal.Rptr.4th 1222 (Cal. App. 2 Dist. 2014). Representation of Relativity Media and the creators and producers of the horror film The Unborn in the US Court of Appeals for the Ninth Circuit in a case filed by screenwriter Daniel Segal, alleging a federal claim for copyright infringement and a state law claim for breach of implied contract. The Ninth Circuit ruled in favor of our clients, affirming the district court's dismissal, with prejudice, of the copyright claim for lack of substantial similarity. The Ninth Circuit also affirmed the district court's denial of leave to amend to reassert the claim for breach of implied contract. Segal v. Rogue Pictures, 544 F. App'x 769 (9th Cir. 2013). Representation of NBCUniversal and the producers of the series Heroes in the US Court of Appeals for the Ninth Circuit in a case filed by Carnival of Souls graphic novel writer Jazan Wild, alleging a federal claim for copyright infringement and various state law claims. The Ninth Circuit ruled in favor of our clients, affirming the district court's dismissal, with prejudice, of the copyright claim for lack of substantial similarity. Wild v. NBCUniversal, 513 F. App'x 640 (9th Cir. 2013). Representation of Microsoft Corporation in the US Court of Appeals for the Third Circuit in a reverse trademark infringement case in which Kinbook LLC alleged that Microsoft's trademarks "Kinect" and "KIN" were confusingly similar to Kinbook's "Kinbox" and "Munchkinbox" trademarks. In a victory for our client, the Third Circuit affirmed the district court's grant of summary judgment that no reasonable jury could find a likelihood of confusion between the parties' marks. Kinbook LLC v. Microsoft Corp., 490 F. App'x 491 (3d Cir. 2013). Patent Representation of defendant-appellant Apotex, Inc. in appeal of a district court decision relating to the manufacture of a generic modafinil-based drug used to treat sleeping disorders, in which Apotex alleged the patent was invalid and unenforceable on multiple grounds, including because the patent had been procured through inequitable conduct. Apotex v. Cephalon, 500 F. App'x 959 (Fed. Cir. 2013) (per curiam). Representation of appellant Apotex on appeal of a district court decision relating to the blockbuster drug Plavix. The court reversed an award of more than $100 million in prejudgment interest under a settlement agreement. Sanofi-Aventis v. Apotex Inc., 659 F.3d 1171 (Fed. Cir. 2011). Successful representation of a multinational electronics manufacturer in defense of a patent infringement lawsuit and in inter partes review proceedings before the USPTO PTAB. The two patents-in-suit allegedly covered the scalable display of Internet content on mobile devices, and were asserted in the same lawsuit against several smartphone manufacturers, including our client. SoftView LLC v. Apple, Inc. et al., No (consolidated) (D. Del.). Katten filed petitions for inter partes review of the asserted patent claims with the PTAB the only IPR petitions filed before the deadline expired. The PTAB granted both petitions, and the district court then granted our motion to stay the lawsuit, pending the outcome of the PTAB proceedings. The PTAB's final written decisions held all of the asserted patent claims unpatentable. The patent owner appealed both decisions to the US Court of Appeals for the Federal Circuit. Katten briefed and argued the appeal, and the Federal Circuit affirmed both of the PTAB's decisions with a Rule 36 order in favor of Katten's client. Softview LLC v. Kyocera Corporation, et al., Nos , (Fed. Cir., February 9, 2015). Commercial/Real Estate Representation of Retail Property Trust, a wholly owned subsidiary of Simon Property Group, Inc., in the US Court of Appeals for the Ninth Circuit, arguing that the Labor Management Relations Act (LMRA) does not preempt traditional state-law property claims for trespass and private nuisance asserted against a labor union that was arguably engaged in a secondary boycott at the time. The Ninth Circuit agreed in an important precedential opinion that overturned an adverse decision by the district court. Retail Property Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938 (9th Cir. 2014). Representation of the owner of a shopping mall in Rockville, Maryland, in a case involving the owner's ongoing efforts to redevelop the mall into a major

6 mixed-use, town-center-style development. An anchor tenant of the mall sought to enjoin further redevelopment of the mall under a reciprocal easement agreement. In an important published decision, the US Court of Appeals for the Fourth Circuit affirmed the denial of the anchor tenant's request for injunctive relief, holding that the proposed injunction would have required the district court to either supervise the restoration of the mall or freeze the mall's ongoing redevelopment efforts, both of which the court of appeals deemed infeasible. Lord & Taylor, LLC V. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015). Environmental Representation of the Renewable Fuels Association (RFA), the leading voice of the US ethanol industry, in the US Court of Appeals for the Ninth Circuit, defending the district court's preliminary injunction and summary judgment rulings in favor of our client that California's Low Carbon Fuel Standard Program violates the dormant Commerce Clause of the US Constitution by discriminating against out-of-state corn-derived ethanol while favoring in-state corn ethanol and impermissibly regulating extraterritorial conduct. Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013), cert. denied, 134 S. Ct (2014), on remand, No. 1:09-cv-2234 (E.D. Cal.). Representation of Targa Resources Corp., a midstream provider of oil and gas services, in litigation against the EPA in the US Court of Appeals for the District of Columbia Circuit. This complex litigation challenged the EPA's air quality nonattainment designations in the 2008 Ozone National Ambient Air Quality Standards rulemaking. Mississippi Comm'n on Envt'l. Quality v. EPA, No (D.C. Cir.). Representation of the RFA as an amicus curiae in litigation before the Supreme Court of Indiana regarding the classification of ethanol production facilities under that state's implementation of the federal Clean Air Act's Prevention of Significant Deterioration program. The Court ultimately sided with the RFA's position, holding that Indiana could reduce regulatory burdens on the State's ethanol industry without formally revising its State Implementation Plan with the EPA. Nat'l Res. Def. Council v. POET Biorefining North Manchester, LLC, 15 N.E.3d 555 (Ind. 2014). Consumer Class Action Representation of Title Lenders in the Supreme Court of Missouri in which we obtained a unanimous decision for our client, holding that the presence of a class action waiver is not, in itself, grounds for finding that an arbitration agreement governed by the Federal Arbitration Act is "unconscionable" under state law. Robinson v. Title Lenders, Inc., 364 S.W.3d 505 (Mo. 2012). Tax Representation of taxpayers in the US Court of Appeals for the Federal Circuit and US Supreme Court in a case where we obtained a ruling in favor of clients on the issue of whether an understatement of income resulting from an overstatement of tax basis for sold property can qualify as an omission from gross income giving rise to an extended sixyear (as opposed to three-year) period for tax assessment. The victory against the IRS was a multimillion-dollar win for our clients and is projected to have as much as a billion-dollar impact in tax cases across the country. Grapevine Imports, Ltd. v. United States, 636 F.3d 1368 (Fed. Cir. 2011), vacated and remanded by 132 S. Ct (2012). Pro Bono Representation of a transgender ironworker in an appeal before the US Court of Appeals for the Second Circuit alleging discrimination and retaliation against his union and two of its officials. In a precedential opinion reinstating the client's lawsuit, the Second Circuit recognized for the first time that allegations of transgender discrimination are sufficient to state a claim for breach of a labor union's duty of fair representation, an implied cause of action under the National Labor Relations Act. The Second Circuit also ordered the US District Court for the Southern District of New York to reconsider the client's claims of discrimination under Title VII of the Civil Rights Act of 1964, holding that the failure to exhaust administrative remedies with the Equal Employment Opportunity Commission did not mandate dismissal, and recognizing that the client's failure to exhaust might be excused on one or more equitable grounds. The Second Circuit

7 lauded Katten's work during the argument and noted in its opinion that the client was "ably represented" on appeal. Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015). Representation, in cooperation with the National Immigrant Justice Center, in the US Court of Appeals for the Seventh Circuit of a woman who had emigrated from Nicaragua and was facing removal from the United States based on "fraudulent marriage" charges. Despite our client's repeated requests, the immigration judge denied our client a subpoena to obtain the opportunity to cross-examine her estranged husband the only source for the charges who had fled the jurisdiction by the time of her hearing. The Seventh Circuit held that the removal had been ordered in violation of our client's procedural rights and reversed the removal order. The case was not only a victory for our client, but an important decision protecting an alien's statutory entitlement to cross-examine adverse witnesses. Malave v. Holder, 610 F.3d 483 (7th Cir. 2010). Representation of the Law Center to Prevent Gun Violence, the City of Chicago, the Major Cities Chiefs Association and the Association of Prosecuting Attorneys as amici curiae in the Illinois Supreme Court in defense of the constitutionality of Cook County's ban on assault weapons and largecapacity ammunition magazines. Wilson v. Cook County, 968 N.E.2d 641 (Ill. Sup. Ct. April 5, 2012). Current representation of the Law Center to Prevent Gun Violence and local gun safety organizations as amici curiae in defense of the constitutionality of bans on assault weapons and large-capacity ammunition magazines in Friedman v. City of Highland Park, No (7th Cir.); Kolbe v. O'Malley, No (4th Cir.) (MD statute); Fyock v. City of Sunnyvale, No (9th Cir.); Shew v. Malloy, No (2d Cir.) (CT statute); Nojay v. Cuomo, No (2d Cir.) (NY statute); and Colorado Outfitters Ass'n v. Hick enlooper, No (10th Cir.) (CO statute). Representation, as co-counsel with the American Civil Liberties Union (ACLU) and Lambda Legal Defense & Education Fund, Inc., of plaintiff transgender prison inmates in the US Court of Appeals for the Seventh Circuit in a facial challenge to a Wisconsin statute prohibiting the use of public funds for hormone therapy or sexual reassignment surgery for inmates of Wisconsin prisons, without regard to medical need as determined by the Wisconsin Department of Corrections' physicians. The Seventh Circuit unanimously affirmed the district court in holding that the statute, on its face, violated the Eighth Amendment's ban on cruel and unusual punishment. Fields v. Smith, 653 F.3d 550 (7th Cir. 2011). Representation of a prominent biologist as an amicus curiae in the US Supreme Court in a lawsuit challenging the constitutionality of Proposition 8, the California ban on same-sex marriage. The brief explained how the distinction between biological sex and the expression of gender shows that the classification employed in Proposition 8 is irrational. Hollingsworth v. Perry, 133 S. Ct (2013).