Practice Area

Appellate

A verdict at trial is rarely the final word. Appeals often follow, at times dramatically changing the outcome of a case. And a pending appeal can affect a company's stock price, reputation and bottom line.

Combining our national recognition in trial work involving advertising, antitrust, patents, copyrights, trademarks, products liability, white collar, and media with the experience of litigators who have successfully argued numerous landmark appeals, Patterson Belknap's appellate group makes a difference to businesses nationwide. Our firm represents clients in intermediate appellate courts and courts of last resort across the country, both federal and state—including the U.S. Supreme Court. Clients work not only with appellate practitioners having a track record of success, but also with practitioners deeply grounded in the subject matter of the appeal.

One of our greatest strengths—and one of the greatest advantages for clients—is that Patterson Belknap's lawyers actually try cases in addition to arguing appeals. For us and our clients, our work is about more than just theory—it's about application. Because we are in the courtroom regularly, we can call on our extensive first-hand experience with judges and knowledge of the rules and customs in federal and state jurisdictions across the country when setting appellate strategy. In addition, more than half of Patterson Belknap's litigators have held judicial clerkships, including many at federal and state appellate courts.

In addition to representing parties on appeal, Patterson Belknap has broad and deep experience preparing compelling amicus briefs in cases of importance to clients, industries, and the nation as a whole. We have prepared and filed dozens of amicus briefs before the U.S. Supreme Court in recent years, both pro bono and for commercial clients, on subjects ranging from civil rights to criminal procedure to intellectual property.

Selected appellate achievements include:

Anti-Counterfeiting

  • Won Second Circuit affirmance of a preliminary injunction against wholesaler defendants prohibiting importation and domestic distribution of blood-glucose testing strips packaged for ex-U.S. sale. 

Antitrust

  • Won Third Circuit reversal of a district court’s order declining to compel arbitration of antitrust claims brought against a pharmaceutical manufacturer by wholesalers alleging that the manufacturer had attempted to suppress biosimilar competition.
  • Won reversal of a Louisiana trial court’s order refusing to dismiss antitrust and unfair-trade-practices claims concerning our client’s marketing of its fenofibrate medicine. Agreeing with us, the Court of Appeals held that the State of Louisiana lacked standing to bring these claims and that the proper party was time-barred from suing.  
  • Secured Second Circuit affirmance of a summary-judgment grant for our client in a Robinson-Patman Act case brought by a group of retail pharmacies alleging that our client’s pricing practices harmed their ability to compete. 

Commercial Litigation

  • Won Seventh Circuit affirmance of a summary-judgment grant in a RICO class action brought by third-party payors, who alleged that several pharmaceutical companies had conspired to promote their testosterone medications for off-label uses.  
  • Won Seventh Circuit affirmance of the dismissal of RICO claims brought against our client by a putative class of third-party payors alleging off-label promotion of the client’s anti-seizure medication.  
  • Retained as appellate counsel after a federal district court held that our client’s flagship product was an unapproved “new drug” and enjoined its sale nationwide. Developed and presented innovative preemption and Commerce Clause arguments that persuaded the Federal Circuit to lift the injunction in 49 of 50 states.  
  • Retained as appellate counsel for a Fortune 500 electronics company after the district court dismissed the client’s multimillion-dollar insurance-coverage suit. Persuaded the Ninth Circuit to reverse and reinstate the suit on the ground that the trial court had incorrectly applied California choice-of-law rules. 

False Advertising

  • Won First Circuit affirmance of a pleadings-stage dismissal in a novel class action under Massachusetts consumer protection law.  Persuaded the court that manufacturers need not disclose information in their product labeling merely because knowing that information would impact a consumer’s purchase decision on moral or ethical grounds. 
  • Obtained Second Circuit dismissal of a consumer class action alleging that a best-selling soft drink was misleadingly labeled and advertised. Successfully defended the dismissal on appeal, obtaining a published opinion setting forth rigorous pleading standards under New York’s consumer-protection laws. 
  • Won dismissal of a putative class action alleging that the labels of our client’s chocolate products were deceptive because they did not disclose that some cocoa may have been produced by overseas third parties using forced labor and/or child labor. Secured affirmance from the Ninth Circuit, which held that manufacturers need not disclose information unrelated to product safety or functionality, even if consumers would find it material. 
  • Won Eighth Circuit affirmance of the district court’s approval of a $32 million class-wide settlement in a consumer class action alleging mislabeling of pet food. Persuaded the court to reject the arguments of four objectors and find the settlement fair and reasonable. 
  • Obtained a nationwide preliminary injunction for an animal health company, blocking a dairy company’s ad campaign that misleadingly implied that our client’s supplement is unsafe. On appeal in the Seventh Circuit, won affirmance of the preliminary injunction in all respects. 

Law Firm Defense

  • Obtained reversal by the New York Appellate Division, First Department of a trial court’s decision denying a lawyer and law firm’s motion to dismiss malpractice claims brought by a well-known recording artist.  

Media and Entertainment

  • Retained as appellate counsel to defend a New York trial-court decision dismissing a libel complaint arising from an article in an international daily newspaper. Obtained affirmance, setting favorable precedent on an important issue of first impression regarding the admissibility of reader surveys in libel suits.  
  • Won dismissal of industrial espionage matter at summary judgment arising from a competitor’s allegation that client employed consultants to illegally access a proprietary database. After winning dismissal of the RICO claims at the motion to dismiss stage, then won summary judgment decision dismissing Sherman Act, Lanham Act, and myriad state law claims and leaving only limited claim of unfair competition that plaintiff voluntarily dismissed. After two-day hearing won motion excluding adversary's damage expert. The Second Circuit affirmed the district court’s summary judgment decision resulting in a complete victory for our client. 

Patent

  • Won affirmance of a summary-judgment grant to our client in a patent-infringement suit involving blood-glucose test strips. Persuaded the Federal Circuit that prosecution history estoppel barred the plaintiff’s claims for infringement.  
  • Won Federal Circuit affirmance of a decision of the Patent Trial and Appeal Board invalidating all 17 claims of a medical-device patent. 
  • Represented a medical device manufacturer accused of infringing a competitor’s patents on ultrasonic surgical instruments. The Federal Circuit reversed the $176.5 million in damages a district court had awarded the plaintiff for our client’s alleged infringement of three surgical device patents and affirmed the district court’s ruling that 26 of the claims asserted against our client were invalid as anticipated by the prior art, and held as a matter of law that the remaining claims were invalid as obvious. The Supreme Court denied the plaintiff’s petition for a writ of certiorari. 
  • The Federal Circuit reversed a $593 million jury verdict from the Eastern District of Texas and found that our client, a Fortune 50 medical device manufacturer, did not infringe a doctor’s patent on heart devices. The Federal Circuit found that the district court erred in construing two claim terms and that under the correct construction our client was entitled to judgment of noninfringement as a matter of law. The U.S. Supreme Court then denied the doctor’s petition for a writ of certiorari. 

Pro Bono

  • Served as co-counsel of record to the Common Cause respondents in litigation before the U.S. Supreme Court involving the constitutionality of partisan gerrymandering.  

Products Liability

  • Persuaded West Virginia’s high court to reject “innovator liability”—i.e., to hold that name-brand pharmaceutical manufacturers cannot be held liable for injuries caused by generic versions of their medicines. Drug and Device Law Blog called this the most important drug-and-device decision of 2018 and credited it with stopping a trend in the state courts toward adopting innovator liability.  

White Collar

  • In a major white-collar appellate victory, the Second Circuit overturned a jury verdict against our client, a nonprofit organization, in a civil asset forfeiture proceeding. The verdict would have required forfeiture to the U.S. government of nearly a billion dollars in assets, including a New York City skyscraper—one of the largest forfeitures in U.S. history.  
  • Secured Fourth Circuit affirmance of the dismissal of a False Claims Act suit alleging off-label promotion. Obtained a precedent-setting decision requiring a heightened pleading standard for submission of false claims.