The 2014 Appellate Hot List: Kirkland & Ellis
We've identified 20 firms with outstanding achievements before the U.S. Supreme Court, federal circuit courts and state courts of last resort. The matters they handled were vast — from same-sex marriage to big-bank class actions to intellectual property battles. We asked our readers to nominate firms with at least one significant appellate win since January 2013 and with an impressive track record overall. To settle upon the firms listed below, we supplemented that material with our own reporting.
Kirkland & Ellis
When it comes to crafting winning arguments, it's a practical matter for Kirkland & Ellis' appellate group.
"We do not believe in Ivory Tower briefs," said Christopher Landau, head of the 20-attorney team. "We get right to the heart of the matter with arguments that not only explain that the law is on our side, but why our arguments make sense."
The group has scored a number of recent wins, including one that partner Jay Lefkowitz said reversed a decision that would have "turned preemption jurisprudence on its head."
In Mutual Pharmaceutical v. Bartlett, Lefkowitz served as lead U.S. Supreme Court counsel arguing for the reversal of a New Hampshire federal court damages award of about $20 million given to a woman who suffered serious side effects after taking the generic version of the antiinflammatory drug Clinoril.
The plaintiff argued in the lower court that the generic drug should have included a stronger warning label, but, according to Lefkowitz, the Supreme Court previously rejected that argument in 2011. In PLIVA v. Mensing, the court found that under federal law generic-drug companies could not alter their product labeling and that state law could not preempt federal rules.
In the Mutual Pharmaceutical case, the U.S. Court of Appeals for the First Circuit upheld the award, finding that a drug manufacturer could avoid liability "if it just stopped selling its products all together," he said. The Supreme Court, however, reversed by a 5-4 vote. Ulmer & Berne served as co-counsel.
Kellogg, Huber, Hansen, Todd, Evans & Figel represented Karen Bartlett. "I was disappointed but not surprised by the outcome," said Kellogg Huber partner David Frederick.
In another big case, Landau served as lead counsel for Omaha-based ConAgra Foods Inc. before the U.S. Court of Appeals for the Seventh Circuit. The case grew out of a 2010 explosion of a ConAgra grain bin in Chester, Ill., that injured three workers hired to remediate the condition of the bin.
The federal trial court issued an almost $180 million damages award in 2012, which was reversed by the Seventh Circuit in September. The court also affirmed an earlier jury verdict of $3 million against the contractor for damage to the grain bin.
The Seventh Circuit denied a petition for rehearing in October. Clausen Miller's Paul Esposito served as co-counsel in the appeal.
"When oral arguments began there was a clear message sent by Justice Frank Easterbrook that he did not agree with the jury verdict," said opposing counsel Robert Clifford, a partner at Clifford Law Offices. "That is not to diminish the fact that Mr. Landau did a wonderful job on behalf of his client."
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