Appeals
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Kirkland & Ellis LLP’s ‘renowned’ group briefs and argues appeals at state and federal level, and maintains a strong workload of the highest level mandates. - The Legal 500 U.S. 2018: Dispute Resolution: Appellate
Winning in litigation takes a variety of routes.
Kirkland knows them all.
Kirkland has one of the premier appellate practices in the country. Our appellate attorneys have extensive experience briefing and arguing high-stakes cases in the federal courts of appeals, the state appellate court, and the U.S. Supreme Court. The practice features former U.S. Solicitor General Paul Clement; Erin Murphy, who has been named one of the nation’s “Outstanding Women Lawyers”; John O’Quinn, who was a senior official in the U.S. Department of Justice and has argued dozens of patent appeals; and many other attorneys who have served as law clerks on the Supreme Court, the courts of appeals, and the district courts.
Our attorneys share a wealth of experience in the federal and state appellate courts. We have handled high-stakes appeals in every federal court of appeals in the country and in myriad substantive areas, including antitrust, bankruptcy, class actions, copyright, criminal, education, employment, energy, environmental, ERISA, FDA, health care, labor, national security, patent, preemption, professional liability, RICO, securities, telecommunications, voting rights and all manner of constitutional issues.
We have considerable experience with patent appeals in the Federal Circuit, specialized administrative appeals in the D.C. Circuit, extraordinary petitions for mandamus, and petitions for interlocutory appeal under 28 U.S.C. § 1292(b) and Federal Rule of Civil Procedure 23(f).
Experience
National Football League
Following on the heels of a successful appeal reinstating the suspension of Tom Brady, Kirkland successfully represented the National Football League in its efforts to enforce the Commission’s six-game suspension of Dallas Cowboys running back Ezekiel Elliott for domestic violence. After the Commissioner imposed the suspension, Elliott appealed to an arbitrator, as was permitted by the collective bargaining agreement between the NFL and the NFL Players Association. Before the arbitrator issued his decision, however, Elliott filed suit in federal district court in Texas asking the court to vacate the “forthcoming” arbitration award because of alleged “fundamental unfairness” in the arbitration proceeding. The arbitrator eventually upheld the suspension, but the district court enjoined the NFL from enforcing it. Kirkland represented the NFL in appealing and seeking a stay pending appeal, arguing that the district court lacked subject-matter jurisdiction because Elliott filed his lawsuit before exhausting his arbitral remedies. The Fifth Circuit agreed, and immediately vacated the district court’s injunction and ordered the case dismissed for lack of jurisdiction. Elliott then sought to challenge the suspension in the Southern District of New York, where the NFL had brought parallel proceedings to enforce the arbitrator’s decision. After Kirkland defeated his request for a preliminary injunction, Elliott sought a stay pending appeal from the district court, and then the Second Circuit. Kirkland defeated both of those requests as well, at which point Elliott dropped his appeal and served the suspension, which ultimately was confirmed.
Sanofi
Kirkland secured a precedent-setting victory for Sanofi and Regeneron Pharmaceuticals, Inc., in this Federal Circuit patent law appeal. Sanofi and Regeneron developed and market Praluent, an antibody therapy that lowers cholesterol. Amgen, which markets a competitor product, Repatha, sued Regeneron and Sanofi for patent infringement and sought to pull Praluent off the market. Sanofi and Regeneron stipulated to infringement but challenged Amgen’s patents as invalid. Amgen prevailed at a jury trial when the jury found the patents valid, and the district court ordered a permanent injunction requiring Regeneron and Sanofi to withdraw Praluent from the U.S. market within 30 days. Kirkland was brought in to handle the appeal and sought an emergency stay. The Federal Circuit granted the stay, and Kirkland ultimately obtained complete victory when the Federal Circuit vacated the judgment and injunction and ordered a new trial.
Association for Accessible Medicines
Kirkland secured a complete appellate victory in the Fourth Circuit for the Association for Accessible Medicines (AAM), an association representing manufacturers of generic and biosimilar medicines, in AAM’s dormant Commerce Clause challenge to a Maryland generic drug pricing statute that purported to regulate the prices generic drug manufacturers could charge their wholesale distributors anywhere in the country. Kirkland argued that the statute violated the dormant Commerce Clause’s extraterritoriality principle, and was separately unconstitutional on the grounds of unconstitutional vagueness. The Fourth Circuit agreed, concluding that the statute directly regulated the prices that manufacturers may charge wholesalers even in wholly out-of-state transactions, and thus intruded on Congress’ power to regulate interstate commerce under the U.S. Constitution. The Fourth Circuit remanded with instructions to enter judgment in favor of AAM, and subsequently denied Maryland's request for a rehearing en banc.
HSBC
United States v. HSBC Bank USA, N.A.
Kirkland successfully represented HSBC in a Second Circuit appeal involving an effort by a third party to obtain access to a federal corporate compliance monitor’s report on HSBC’s financial operations in connection with a mortgage loan dispute. Over the objections of both the United States and HSBC, a district court ordered the highly confidential report released. HSBC appealed, arguing that the district court’s asserted power to supervise the monitor’s actions was inconsistent with the relevant federal statutes and the separation of powers. The Second Circuit unanimously reversed, agreeing with HSBC that the district court’s actions intruded on the powers of the Executive Branch.
Alcoa Power Generating
Kirkland won a significant Fourth Circuit appeal for Alcoa in a high-stakes property dispute with the State of North Carolina. The case arose out of the state’s efforts to claim title to a 45-mile segment of riverbed underlying a hydroelectric power project. Although Alcoa had possessed record title to the property for the better part of a century, in 2013, the State sued Alcoa in state court, claiming that Alcoa’s title was invalid because the property underlies a river that was navigable at statehood, and therefore has always belonged to the State. Alcoa removed the case to federal court on the ground that navigability is a federal law question. The district court agreed, rejecting the State’s novel position that the 13 Original States are not bound by the same federal navigability test as all other States, and affirmed the district court’s decision in all other respects. After the Fourth Circuit denied rehearing by a closely divided 8-7 vote, Kirkland defeated the state’s petition for certiorari seeking Supreme Court review.
110 Appeal Wins
January 2017–July 2018
Appeal Wins for 91 Clients
January 2017–July 2018
Appeal Wins in More Than 30 Venues
Including all 13 Federal Circuits
January 2017–July 2018