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Contact:   Beth S. Brinkmann

Morrison & Foerster has a thriving appellate practice in the Supreme Court of the United States, as well as in the federal courts of appeals and state appellate courts across the country. Our appellate attorneys have taken on some of the most challenging legal issues of significance to businesses in a wide range of areas, including federal preemption, arbitration, patent law, tax, antitrust, financial services, RICO, and class actions.

Several of our attorneys have particular expertise before the Supreme Court of the United States, having served in the Office of the Solicitor General or as law clerks at the Supreme Court, including former Solicitor General Drew S. Days, III, and former Assistant to the Solicitor General Beth S. Brinkmann. More than a half dozen attorneys in the firm have argued before the Supreme Court, with more than fifty arguments among them. Three of our attorneys argued before the Court in 2007.

Our experience in the courts of appeals reflects similar breadth. Over the past five years, the firm has represented clients in more than one hundred cases in the federal courts of appeals and in more than forty cases in state supreme courts. Our attorneys include numerous former federal appellate law clerks, as well as a former federal court of appeals judge, Shirley Hufstedler.

We provide our clients a wide range of appellate assistance, including work at the trial level to frame legal arguments for appeal, drafting extraordinary writs, strategic analysis of when and where to pursue further review, amicus curiae briefs and, of course, briefs and oral argument in appellate courts nationwide. We frequently are retained after trial to take on an appeal and often work with trial counsel to provide an efficient and effective team. Throughout all levels of litigation, we maintain our focus on how best to further our clients’ interests. We also actively monitor appellate developments relevant to our client’s industries to alert them to the potential effect of pending cases and forthcoming rulings.

Supreme Court

Morrison & Foerster’s Supreme Court practice is headquartered in Washington, D.C. We represent major corporations, trade associations, and various industry groups before the Supreme Court on a regular basis. We are skilled at presenting our clients’ positions in a context that facilitates the Supreme Court’s resolution of a broad legal issue presented while also advancing our client’s interests in the particular case.

Our attorneys are experienced at briefing and oral argument before the Supreme Court on the merits of cases, and also at the certiorari stage, where the Court decides whether to hear a case. We are particularly adept at drafting briefs in opposition to preserve lower court victories and at preparing compelling petitions for Supreme Court review. The firm also represents clients in meetings before the Department of Justice, the Office of the Solicitor General, and other federal agencies related to appellate and Supreme Court litigation.

The following are some of the appellate matters that we have handled:

In the Supreme Court of the United States

• MeadWestvaco v. Illinois Dep’t of Revenue, 128 S. Ct. 1498 (2008). Argument and brief for MeadWestvaco regarding whether the sale of a nonunitary business served an operational rather than an investment function, and thus was subject to taxation by a non-domiciliary State.
• Hall Street Associates v. Mattel, Inc., 128 S. Ct. 1396 (2008). Argument and brief for Mattel, Inc. regarding whether the Federal Arbitration Act permits parties to expand the grounds on which a court may vacate or modify an arbitration award under Sections 10 and 11 of the Act.
• Rowe v. New Hampshire Motor Transport Ass’n, 128 S. Ct. 989 (2008). Argument and brief for New Hampshire Motor Transport Ass’n, Massachusetts Motor Transportation Ass’n, Inc., and Vermont Truck & Bus Ass’n, Inc. on the scope of the preemption provision of the Federal Aviation Administration Authorization Act of 1994.
• Klein & Co. Futures Inc. v. Board of Trade, 127 S. Ct. 2431 (2007). Petition for a writ of certiorari, and, after Supreme Court granted petition, brief for Klein & Co. Futures Inc. regarding whether the Commodity Exchange Act confers a private right of action to futures commission merchants that suffer losses as a result of a board of trade’s bad faith failure to adhere to its own rules, the Commodity Exchange Act, or federal regulations.
• Quanta Computer, Inc. v. LG Electronics, Inc., 128 S. Ct. 2109 (2008). Brief for Gen-Probe Incorporated regarding whether the authorized sale of a patented article exhausts the patent rights in regard to the item sold, and whether conditions on the use of such an article after sale are enforceable only by contract.
• Yax v. UPS, 127 S. Ct. 2428 (2007). Brief for UPS in opposition to a certiorari petition regarding proximate cause under civil RICO.
• Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007). Brief for bipartisan group of five former Secretaries of Education and Secretaries of Health, Education, and Welfare – David Mathews, Joseph A. Califano, Jr., Shirley M. Hufstedler, Lauro Fred Cavazos, and Richard W. Riley – on compelling nature of national interest in reduction of racial isolation in public schools.
• Microsoft Corp. v. Odom, 128 S. Ct. 464 (2007). Brief for the Chamber of Commerce of the United States in support of a petition for a writ of certiorari regarding the scope of an association-in-fact enterprise within the meaning of RICO.
• Sole v. Wyner, 127 S. Ct. 2188 (2007). Argument and brief for civil rights plaintiffs regarding meaning of statutory provision in 42 U.S.C. § 1988 that permits court to award a “prevailing party” reasonable attorneys’ fees.
• KSR International Co, v. Teleflex, Inc., 127 S. Ct. 1727 (2007). Brief on behalf of Biotechnology Industry Organization addressing whether the Federal Circuit’s test for non-obviousness is consistent with the Patent Act.
• Limtiaco v. Camacho, 127 S. Ct. 1413 (2007). Argument and brief for the Governor of Guam regarding the interpretation of the debt limitation provision of the Guam Organic Act.
• Safeco Insurance Co. of America v. Burr, 127 S. Ct. 2201 (2007). Brief for Financial Services Roundtable, the Chamber of Commerce of the United States, the Business Roundtable, the Mortgage Bankers Ass’n, the American Bankers Ass’n, the American Financial Services Ass’n, America’s Community Bankers, and the Consumer Bankers Ass’n regarding interpretation of the Fair Credit Reporting Act.
• Mohawk Industries, Inc. v. Williams, 126 S. Ct. 2016 (2006). Brief for the Chamber of Commerce of the United States of America, the National Federation of Independent Business Legal Foundation, and the Society for Human Resource Management regarding the proper scope of an association-in-fact enterprise within the meaning of RICO.
• Texaco, Inc. v. Dagher, 547 U.S. 1 (2006). Brief for the American Bankers Ass’n, Consumer Bankers Ass’n, and Financial Services Roundtable regarding antitrust doctrines governing joint ventures in the financial services industry.
• Philip Morris USA Inc. v. Boeken, 126 S. Ct. 1567 (2006). Brief for the Chamber of Commerce of the United States of America in support of a petition for a writ of certiorari regarding the Due Process Clause’s limits on excessive punitive damages.
• Goodman v. Georgia, 546 U.S. 151 (2006). Petition for a writ of certiorari and, after success on grant of review, brief regarding congressional authority under the Fourteenth Amendment to enact the Americans with Disabilities Act.
• University of Illinois v. Fujitsu Limited, 546 U.S. 812 (2005). Brief in opposition to a certiorari petition on behalf of Fujitsu Limited and Fujitsu Hitachi Plasma Display Limited involving the limits on federal appellate court jurisdiction over provisional interlocutory orders regarding state sovereign immunity in patent cases.
• Merck KGaA v. Integra LifeSciences I, Ltd., 545 U.S. 193 (2005). Brief on behalf of Invitrogen Corp., ALYSSA, BIOCOM, Affymetrix, Inc., Diversa Corp., Quantum Dot Corp., Sangamo BioSciences, Inc., and Symyx Technologies, Inc. addressing the issue of research tool patents.
• Granholm v. Heald, 544 U.S. 460 (2005). Brief for the Cargo Airline Ass’n regarding the preemptive effect of the Commerce Clause and of the Federal Aviation Administration Authorization Act of 1994 on laws regulating the delivery of wine by cargo carriers.
• Verizon v. Trinko, 540 U.S. 398 (2004). Brief for UPS, Visa U.S.A., Honeywell International, and Eastman Kodak Company, in support of a petition for a writ of certiorari and also on the merits after review was granted, regarding the invalidity of the essential facilities and monopoly leveraging antitrust doctrines.
• KP Permanent Make-Up Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004). Argument and brief on behalf of businesses in the permanent make-up industry, against competitor’s claim of fair use of their trademark in the term “micro colors”® for make-up pigments.
• Eldred v. Ashcroft, 537 U.S. 186 (2003). Brief for ASCAP, BMI, and other associations of music publishers regarding the constitutionality of the Copyright Term Extension Act of 1998.
• Beneficial National Bank v. Anderson, 539 U.S. 1 (2003). Brief for the American Bankers Ass’n, America’s Community Bankers, Consumer Bankers Ass’n, and the Financial Services Roundtable regarding the complete preemption of state usury claims by the National Bank Act.
• Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003). Brief for the Conference of Chief Justices, an organization composed of the Chief Justice of every state supreme court, regarding the constitutionality of interest-on-lawyer-trust-account (IOLTA) programs under the Takings Clause.
• Household Credit Serv. v. Pfennig, 541 U.S. 232 (2004). Brief for the American Bankers Ass’n, MasterCard International, Visa U.S.A. Inc., and others regarding judicial deference to a Federal Reserve Board regulation promulgated under the Truth in Lending Act.
• Heimmermann v. First Union Mortgage Corp., 539 U.S. 970 (2003). Brief in opposition to a certiorari petition on behalf of BankAmerica Corp. defending a court of appeals’ victory against class action suits brought under the Real Estate Settlement Procedures Act.
• Gonzaga University v. Doe, 536 U.S. 273 (2002). Argument and brief for former university student, who was seeking to enforce the Family Educational Rights and Privacy Act through 42 U.S.C. § 1983.
• City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424 (2002). Brief for the Cargo Airline Ass’n regarding the scope of preemption of state and local laws by the Federal Aviation Administration Authorization Act of 1994.

In Other Federal and State Courts

• Salvini v. Ski Lifts, Inc., No. 602110 (Wash. Ct. App.) (pending). Brief for Ski Lifts, Inc. challenging a $14 million personal injury judgment.
• Kearney v. Foley & Lardner LLP, No. 07-55566 (9th Cir.) (pending). Brief for Foley & Lardner regarding constitutional and statutory limits on suing attorneys under RICO and common law for conduct undertaken in prior litigation on behalf of governmental entity.
• Aristocrat Technologies Australia Pty Limited v. International Game Technology, Case No. 2008-1016 (Fed. Cir.) (pending). Brief on behalf of Neurotechnology Industry Organization regarding power of Patent and Trademark Office to revive “unintentionally abandoned” applications.
• Winter v. Northrop Grumman Corp., 206 Fed. Appx. 991 (Fed. Cir. 2006). Argument and brief to defend decision of the Armed Services Board of Contract Appeals in favor of Northrop Grumman on government contract dispute.
• Silvas v. E*TRADE Mortgage Corp., 514 F.3d 1001 (9th Cir.) (pending). Brief on behalf of the American Bankers Ass’n and the California Bankers Ass’n regarding federal preemption by the Home Owners’ Loan Act and the Office of Thrift Supervision of state lending regulations for federal savings associations.
• Exxon Mobil Corp. v. FERC, 501 F.3d 204 (D.C. Cir. 2007). Brief for the State of Alaska as intervenor defending FERC’s regulations implementing the Alaska Natural Gas Pipeline Act.
• Levine v. First National Bank of Commerce, 948 So.2d 1051 (Louisiana Sup. Ct. 2006). Argument and brief for JPMorgan Chase Bank, N.A. regarding the breadth of due-on-sale clauses in mortgage agreements and the scope of federal preemption.
• Sebesta v. Schaden, 2006 WL 1350180 (Colorado Ct. of Appeals 2006). Brief on behalf of The Quizno’s Corporation urging affirmance of the trial court’s approval of a class action settlement of breach of fiduciary duty claims.
• ICO Global Communications (Holdings) Limited v. FCC, 428 F.3d 264 (D.C. Cir. 2005). Argument and brief seeking to overturn the revocation of mobile satellite service licenses.
• United States v. Philip Morris USA Inc., 396 F.3d 1190 (D.C. Cir. 2005). Brief for the Chamber of Commerce of the United States and the National Ass’n of Manufacturers regarding the appropriate remedies in suits brought by the federal government under RICO.
• Sammis v. Brobeck, Phleger & Harrison, 2006 WL 1644701 (California Ct. of Appeal 2006). Argument and brief for law firm regarding the failure of proof by plaintiffs in legal malpractice action.
• Huggins v. Citibank (S.D.), N.A., Inc., 585 S.E.2d 275 (South Carolina Sup. Ct. 2003). Brief for Visa U.S.A. Inc., MasterCard International, and national banking associations regarding potential new tort against banks in response to the crime of identity theft.