They’re one of the very best in appellate practice.”
- Chambers USA, 2022
Winning in litigation takes a variety of routes.
Kirkland knows them all.
Kirkland’s appellate practice is comprised of highly accomplished attorneys with experience briefing and arguing many of the most important and high-stakes cases in the federal courts of appeals, state appellate courts, and the Supreme Court of the United States. The practice employs the best and most persuasive writers and litigators in the legal industry. Additionally, Kirkland has over 20 attorneys with U.S. Supreme Court clerkships and over 180 attorneys with U.S. Court of Appeals clerkships, which bolsters our Firmwide appellate practice experience.
Kirkland’s appellate practice handles high-stakes appeals on a broad range of subject matters, 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 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).
Olhausen v. Arriva (S.D. Fla.; 11th Circuit)
Leading the briefing, strategy and arguing the appeal, Kirkland secured an important decision on April 22, 2022 in the 11th Circuit on the scope of the False Claims Act’s (FCA) scienter requirement. The 11th Circuit affirmed on these broader grounds. Given the myriad complex regulatory obligations that many businesses are subject to, this is a significant ruling for defendants sued under the FCA, making it harder for any relator to establish scienter in lawsuits brought within the Eleventh Circuit, when “falsity” is based on an ambiguous statutory, regulatory, or contractual obligation. In rendering this decision, the Eleventh Circuit also made clear that its approach to “scienter” under the FCA is the same as every other circuit — including the Seventh Circuit — contrary to arguments made by relators in other cases.
In re Akorn, Inc., et al. (Bankr. D. Del.; D. Del.)
Kirkland achieved a significant victory in a bankruptcy appeal when the U.S. District Court for the District of Delaware upheld the Chapter 11 reorganization plan for client Akorn, Inc., a generic pharmaceutical company, against over a dozen challenges by unsecured creditors. The court’s decision frequently adopted Kirkland’s arguments virtually verbatim, and it helped to helped to eliminate one of the last obstacles to bringing finality to Akorn’s restructuring.
Albertson Companies, Inc.
U.S., ex rel. Schutte, et al. v. SuperValu, Inc., et al. (C.D. Ill.; 7th Cir.; U.S.)
The SuperValu decision is an important, precedential decision by the Seventh Circuit, holding that the objective knowledge standard the Supreme Court articulated in Safeco Insurance v. Burr, also applies to the False Claims Act’s scienter requirement. This was a significant due process win for False Claims Act defendants, because it makes clear a defendant’s conduct cannot be deemed a knowing violation of the law where the defendant’s conduct was consistent with an objectively reasonable interpretation of an ambiguous legal obligations. The decision makes clear that, because the False Claims Act is a punitive statute — with automatic treble damages and fines — a defendant cannot be liable under that Act for conduct that consistent with an objectively reasonable but erroneous interpretation of its legal obligations. Importantly, the Seventh Circuit’s decision also rejects the argument that a defendant’s subjective intent is relevant and that a defendant must have had its reasonable interpretation in mind at the time of the challenged conduct to raise it as a defense.
BP Exploration & Production, Inc.
McGill v. BP Exploration & Production, Inc., et al. (S.D. Miss.; 5th Cir.)
Kirkland obtained a significant victory in the Eleventh Circuit for client BP Exploration & Production, Inc. in the first federal appellate decision addressing the “Back-End Litigation Option” process established by the Deepwater Horizon medical settlement agreement. That process permits settlement class members to assert later-diagnosed medical claims under prescribed procedures. Affirming summary judgment for BP, the Eleventh Circuit held that the settlement mechanism contains a toxic-tort causation standard requiring general and specific causation, and it affirmed the exclusion of expert evidence on which hundreds of multi-district litigation plaintiffs had relied in alleging injury, clearing the way for additional victories in the district court.
Bristol-Myers Squibb Co.
Tung v. Bristol-Myers Squibb Co. et al. (S.D.N.Y.; 2d Cir.)
On March 11, 2022, Kirkland obtained a victory in the Second Circuit on behalf of Bristol-Myers Squibb and certain individual defendants in an appeal from the dismissal of a securities class action alleging that the defendants misled investors concerning a clinical trial assessing Opdivo as a first-line treatment for non-small cell lung cancer and seeking $10 billion in damages. The district court dismissed the case with leave to amend on scienter grounds primarily. The plaintiffs then filed an amended complaint, adding allegations attributed to five confidential witnesses and an expert witness in immuno-oncology in an effort to plead the missing industry consensus. Kirkland moved to dismiss again, arguing that the plaintiffs still failed to plead adequately falsity or scienter, and that the new confidential witness and expert allegations were insufficiently particularized under the PSLRA. The district court dismissed the matter with prejudice for failure to plead falsity or scienter. The plaintiffs appealed. The Second Circuit affirmed, explaining that Bristol-Myers Squibb had no obligation to disclose the precise percentage of PD-L1 expression, and at no point did the defendants mislead investors regarding the trial’s expression cut-off. The Second Circuit further affirmed on scienter grounds because the plaintiffs failed to plead adequately an industry understanding of “strong” PD-L1 expression. Importantly, the Second Circuit clarified the use of expert testimony in complaints governed by the PSLRA, adopting the 5th Circuit standard urged by Kirkland that expert opinions “cannot substitute for facts under the PSLRA.”
Shoner v. Carrier Corporation (C.D. Cal.; 9th Cir.)
Kirkland continued a long-running winning streak for client Carrier Corporation, when the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal on April 14, 2022 of a class action asserting federal and state law breach-of-warranty claims. The court ruled that Carrier fully complied with the terms of its warranty when it offered a repair program, and that the plaintiff’s speculation that the repair may cause future failures was insufficient. In addition, the court’s precedential ruling held that the plaintiff failed to meet the amount in controversy requirement found in the federal Magnuson-Moss Warranty Act. Kirkland has consistently defended Carrier’s warranty in cases across the country dating back to 2014.
CIOX Health, LLC
Ortiz v. Ciox Health, LLC, et al. (2d Cir.; N.Y.)
On November 18, 2021, Kirkland achieved an unequivocal victory on behalf of New Mountain Capital portfolio company Ciox Health in the New York Court of Appeals, New York’s highest court. Ciox had been sued multiple times in New York state and federal court over alleged overcharges for medical records under New York’s medical record copy pricing law. In the most advanced of these cases, Ortiz v. Ciox Health, the Second Circuit certified to the Court of Appeals the question of whether this law had a private right of action at all. On November 18, 2021, the Court of Appeals unanimously agreed with Ciox that it did not. In a comprehensive opinion liberally copying from Kirkland’s brief, the court reaffirmed that New York will almost never imply a private right of action when any express alternative remedies exist in (or near) the statute in question, even when those remedies do not directly address plaintiff’s alleged injury. This ruling resolves all of Ciox’s pending New York state litigation, and will benefit parties sued under any New York statute that lacks an express private right of action. On December 16, 2021, the Second Circuit adopted the New York Court of Appeals' ruling and affirmed the dismissal.
Florida v. Georgia (U.S.)
After seven and a half years of litigation, Kirkland obtained a complete victory for Georgia in a case in which Florida was trying to cap Georgia’s water use in Atlanta and in the agricultural parts of the state. The case was a rare “original jurisdiction” case where the U.S. Supreme Court has jurisdiction from trial to final appeal. Kirkland led a five-week trial in 2016 before a special master appointed by the Supreme Court, in which 30 witnesses testified. The case also involved two rounds of briefing and argument in front of the Supreme Court. On April 1, 2021, the Supreme Court ruled for Georgia in a unanimous 9-0 opinion and dismissed Florida’s lawsuit. Relying heavily on the trial record created by the Kirkland team, the Supreme Court held that Florida had failed to prove that Georgia’s water use caused any harm to Florida’s oyster fisheries or river wildlife.
Gulfport Energy Corp.
Gulfport Energy Corp. v. Federal Energy Regulatory Commission (Bankr. S. D. Tex.; 5th Cir.)
Kirkland obtained a major appellate victory over the Federal Energy Regulatory Commission (FERC) when the Fifth Circuit vacated four FERC orders issued against client Gulfport Energy Corporation requiring Gulfport to continue performing under energy contracts it had rejected in Chapter 11 proceedings absent separate FERC approval. The Fifth Circuit blasted FERC’s position as “inexplicable,” “clums[y],” and “bizarre,” and held that FERC cannot require continued performance of a contract rejected in bankruptcy. The Fifth Circuit’s decision emphatically repudiates FERC’s recent efforts to expand its jurisdiction over Chapter 11 restructuring proceedings.
Juul Labs, Inc.
Juul Labs, Inc. v. FDA (D.C. Circuit)
Kirkland achieved a significant victory in the D.C. Circuit for Juul Labs on July 6, 2022. Two weeks earlier, on June 23, Food and Drug Administration (FDA) denied Juul’s application to market its electronic nicotine products in the U.S. and issued a press release threatening retailers that they would risk FDA enforcement action unless they immediately removed the products from their shelves. Within hours, Kirkland filed a motion for an emergency stay, and the D.C. Circuit granted a temporary stay late on June 24, allowing Juul’s products to stay on the market while the court considered whether to grant a longer stay. Kirkland worked around-the-clock over the weekend to file a brief explaining why the stay should be extended. Kirkland then started discussing with the FDA a voluntary stay and re-review of Juul’s application. Because of those discussions, FDA voluntarily stayed its decision on July 5, while the agency re-examines its original decision. FDA acknowledged in its stay order that it decided to re-examine its original denial of Juul’s application “after reviewing the briefing materials” Kirkland and Juul submitted, which identified “scientific issues … that warrant additional review” by the agency.
Motorola Solutions, Inc.
Motorola Solutions, Inc. v. Hytera Communications Corporation Ltd., et al. (USPTO; Fed. Cir.)
Kirkland has won four appeals for Motorola Solutions at the U.S. Court of Appeals for the Federal Circuit in recent years, all stemming from a global dispute between Motorola Solutions and Hytera Communications, one of Motorola’s chief competitors, over trade secret misappropriation and patent infringement. In three of those appeals, the Federal Circuit affirmed U.S. Patent Trial and Appeal Board decisions upholding patents on Motorola's innovative two-way radio technology, rejecting numerous challenges to the patents' validity brought by Hytera Communications. In a fourth appeal, the court affirmed a summary judgment order that Motorola’s two-way radios do not infringe a patent owned by Hytera. Hytera raised multiple challenges to the district court’s summary judgment decision, but the Federal Circuit rejected them all less than one week after oral argument.
Sharp Electronics Corporation
Wi-LAN Inc. v. Sharp Electronics Corporation (D. Del.; Fed. Cir.)
Kirkland achieved a decisive victory for Sharp Electronics Corporation in a patent infringement case brought by WiLAN. The Federal Circuit issued an important precedential decision making it harder for plaintiffs to get dubious cases against end-product manufacturers to juries — requiring actual evidence from third parties that have exclusive control over evidence of how their components operate. The court curtailed the use of purported expert testimony to fill in evidentiary gaps in such situations. The district court granted summary judgment to Sharp and the Federal Circuit rejected WiLAN’s declarations as a basis for reversing. Instead, the court limited the use of the business records exception and rejected WiLAN’s attempt to use experts to admit the declarations or source code through the “backdoor.” The decision was an important to curtailing abusive litigation tactics by entities seeking courthouse-step settlements. WiLAN sought rehearing and the Federal Circuit requested a response, but Kirkland demonstrated how the decision was consistent with what the Rules and other courts require.
Ultra Petroleum Corp.
In re Ultra Petroleum Corp. (FERC v. Ultra Resources, Inc.) (Bankr. S.D. Tex.; 5th Cir.)
Kirkland secured a victory on behalf of client Ultra Petroleum Corporation when the Fifth Circuit ruled against the Federal Energy Regulatory Commission (FERC) in a case implicating significant questions at the intersection of bankruptcy court and FERC jurisdiction. The Fifth Circuit held that rejection does not collaterally attack the rate filed with FERC, a bankruptcy court can authorize rejection of a FERC-jurisdictional contract; and bankruptcy courts need not allow FERC to conduct a public interest hearing before deciding rejection. The Fifth Circuit also held that the bankruptcy court did not err in overruling FERC’s objection in confirming Ultra’s plan, as rejection of a contract does not constitute a rate change under section 1129(a)(6) of the Code.
United States v. North (D. Del.; 3d Cir.)
Kirkland obtained a major appellate victory in the highest-profile criminal prosecution of bank executives to arise out of the Great Recession when the Third Circuit reversed and vacated the convictions of client William North and three other former executives of Wilmington Trust Corporation. The executives had been convicted of making false statements, securities fraud, and conspiracy, based on the theory that the bank had underreported “past due” loans by not reporting loans that had matured but were current for interest and in the process of extension. Kirkland was retained for the appeal and promptly obtained release of all defendants pending appeal. Kirkland then led the appellate briefing and oral argument, which lasted over two hours given the case’s significance. The Third Circuit reversed the false-statement convictions and vacated the securities fraud and conspiracy counts, holding that when a reporting requirement is ambiguous, the government must prove that a defendant’s statement is false under each objectively reasonable interpretation of that requirement. After the case was remanded to the district court, the government dropped the remaining counts, resulting in complete exoneration for North and the other defendants.
Windstream Holdings, Inc.
In re Windstream Holdings, Inc. (Bankr. S.D.N.Y.; U.S.; 2d Cir.)
In this bankruptcy appeal before the Second Circuit, Kirkland represented Windstream Holdings, a multi-billion-dollar telecommunications company, in defending well over $100 million in payments that Windstream made to its critical vendors and lien claimants under a critical vendor order entered early in Windstream’s bankruptcy proceedings. The issues presented were not only exceptionally significant to Windstream, but to bankruptcy debtors generally, as the proper standard of review for critical vendor orders had never before been addressed by the Second Circuit and an adverse result could have made complex bankruptcies practically impossible. Less than three weeks after the argument, the panel unanimously adopted Kirkland’s equitable mootness argument — an issue that was not briefed in the lower courts, and that Kirkland developed for the first time on appeal — and summarily dismissed the appeal, in a complete victory for the Firm’s client.