APPELLATE

With so much at stake on appeal, getting the right result is critical. At Nixon Peabody, we understand that the right result means winning on the client’s terms.

Nixon Peabody’s Appellate practice consistently obtains excellent results for our clients in high stakes, high-profile appeals. Our attorneys have significant experience handling appeals at every level, both in state and federal courts. Our successful track record is part of the reason why Nixon Peabody was recognized as one of the leading appellate firms for both the First & Second Circuits by the 2012 edition of Benchmark Litigation, the definitive guide to America’s leading litigation firms and attorneys.

As part of our client-centered focus, we staff cases leanly and efficiently, partnering with our clients through every risk and reward. We know how to work collaboratively and efficiently with trial counsel to make sure the appeal is presented in the best light possible. We bring fresh perspective to cases, and we have the understanding and experience to efficiently review trial records and make assessments based on both current and emerging legal principles. We are skilled at crafting arguments that are likely to be successful on appeal. We write persuasive briefs and argue effectively on our feet.

Our appellate experience extends across practice areas and industries, including insurance; energy; employment; products liability; contracts; Indian law; claims relating to the alleged war-time misappropriation of private property; the application of the Foreign Sovereign Immunities Act; and First Amendment, Second Amendment, same sex marriage, and veterans rights, to name a few. Nixon Peabody’s sophistication in highly specialized areas offers clients a deeper understanding of their issues.

Comprehensive appellate services

In addition to providing a full slate of appellate services, from filing a notice of appeal to post-argument submissions, we offer a suite of discrete services:

• Review briefs: We can quickly review a brief, providing comments from a “fresh” neutral perspective, or we can fully “moot” a brief, even preparing a mock responsive brief.
• Appellate advice: We can provide a sounding board on appellate practice and procedure, including information on local court rules and customs.
• Moot courts: We can organize and staff moot courts for significant appeals.
• Trial support: We can assist trial counsel by helping to draft key submissions, such as jury instructions, to preserve appellate issues, and help clients to develop over-all trial and appellate strategy in cases of pattern or repeat litigation.

Broad geographic experience

Our appellate attorneys have broad experience handling appeals in both federal and state jurisdictions across the U.S., including the following courts, among others:

• California: California Supreme Court and California Courts of Appeal
• DC: District of Columbia Court of Appeals
• Massachusetts: Supreme Judicial Court and the Appeals Court
• New Hampshire: New Hampshire Supreme Court
• New Jersey: The Appellate Division of the Superior Court
• New York: all four Appellate Division Departments
• New York Court of Appeals
• United States Supreme Court
• U.S. Court of Appeals for the Federal Circuit
• U.S. Courts of Appeals (First, Second, Third, Fifth, Sixth, Seventh, Ninth, Eleventh, and DC Circuits)

Representative Appellate Experience

Business and Commercial Litigation

• U.S. Bank National Association v. GreenPoint Mortgage Funding, Inc., 94 A. D. 3d 58, New York Supreme Court, 2012. Secured precedent-setting discovery ruling that party responding to discovery requests (for e-discovery and physical documents) initially falls on party responding to request – reversing trial court determination to the contrary.
• Robert I. Burke et al. v. Katherine Gregg et al., R.I. LEXIS 113, Rhode Island Supreme Court, 2012. Obtained favorable decision from the Rhode Island Supreme Court, which upheld the Superior Court’s dismissal of a defamation lawsuit brought by a Providence restaurateur against radio talk show host Dan Yorke and Citadel Broadcasting Corp.(as owner of WPRO-AM), The Providence Journal, and one of its reporters. The plaintiff claimed that a Providence Journal article that was critical about a media policy allegedly enforced by the plaintiff during a political roast at one of his restaurants served as the basis for “crude and disparaging remarks” directed towards him by Dan Yorke on his radio show. A judge ultimately granted the Motions to Dismiss filed by Nixon Peabody on behalf of Yorke and Citadel.
• William F. Perkins v. Aena Y. Haines, James Bronner, Simone Bronner, Nathaniel Bronner, George Russell Curtis, Sr., et al., 661 F. 3d 623, U.S. Court of Appeals, Eleventh Circuit, 2011. In a matter of first impression in the Eleventh Circuit, secured precedent-setting victory on behalf of investors in a fraudulent hedge fund. The Eleventh Circuit affirmed bankruptcy court ruling denying claw back action by trustee. This decision is currently the leading case in the country on claw backs and redemptions.
• Norma Cummings Rettek v. Ellis Hospital, U.S. Dist. LEXIS 1607, NDNY, 2009; U.S. Court of Appeals Second Circuit, 362 Fed. Appx. 210, 2010, U.S. App. LEXIS 1863. Successfully defended Ellis Hospital in an action brought by a relative of a deceased donor who claimed the terms of the family’s charitable bequest to the resident nursing school had not been followed over the preceding decades. The district court dismissed the proceeding for lack of standing and the Second Circuit affirmed.
• Signature Flight Support Corporation v. Landow Aviation Limited Partnership, 730 F. Supp. 2d 513, U.S. Court of Appeals, Fourth Circuit, 2011. Represented Signature Flight Support Corporation in a multi-million dollar contract dispute involving a Signature sublessee, Landow Aviation, at the Washington Dulles International Airport. Signature claimed Landow Aviation went beyond what the sublease permitted. After a 3 week trial, the court ruled in favor of Signature on all contract issues and entered a permanent injunction forcing Landow to comply with the sublease. The Fourth Circuit affirmed trial verdict which protects our client’s business interests against improper competition at Washington Dulles Airport for the next 25 years.
• EqualLogic, Inc. v. Richard C. Shea, No. 2009-0679, New Hampshire Supreme Court, 2011. Represented Dell EqualLogic, a division of Dell, Inc., in a multi-million dollar wrongful injunction claim. Obtained order affirming judgment of the Superior Court in favor of our client.
• Barkan v. Dunkin’ Brands, Inc., 627 F.3d 34 ,U.S. Court of Appeals, First Circuit, 2010. Defended franchisor against $13M fraud and breach of contract claims by former franchisee. After jury trial in December 2009 ended in mistrial because of juror misconduct, client-franchisor obtained directed verdict in January 2010 retrial. The First Circuit upheld the judgment.
• Romano v. Kazacos No. 08-6187 and Lawton v. Isabella, 609 F.3d 512, U.S. Court of Appeals, Second Circuit, 2010. Represented financial advisors as defendants in motions to dismiss two complaints initially brought in state court alleging fraud and breach of fiduciary duty. The district and appellate courts affirmed the dismissal of claims by a putative class of more than 1,000 retirees who claimed they were misled into taking early retirement after having been given deceptive financial projections by their former financial advisors. The court determined that the Securities Litigation Uniform Standards Act of 1998 (SLUSA) precluded the plaintiffs’ state law claims.
• N.J. Transit Corp. v. Harsco Corp., 497 F.3d 323, U.S. Court of Appeals, Third Circuit, 2007. Defended Harsco Corporation against UCC-based breach of implied warranty claim brought by public transit agency that had issued detailed bid package with non-negotiable terms and specified comprehensive bumper-to-bumper express warranty. District court and Third Circuit agreed the comprehensive warranty provisions in the bid package displaced warranties that otherwise might be implied.
• Brisbin v. Superior Valve Co., 398 F.3d 279, U.S. Court of Appeals, Third Circuit, 2005. Represented Harsco Corporation in action brought by supplier claiming bad faith breach of contract under Pennsylvania UCC; successfully obtained reversal of an award of $750,000 in lost profit damages despite bench trial finding of bad faith breach, and successfully reduced award on remand to $20,733.80.

Class Action

• Ackal v. Centennial Beauregard Cellular LLC, Case No. 12-30084 (5th Cir. 2012). Representing wireless telephone service providers sued in 1991 over allegedly improper billing practices, Nixon Peabody successfully appealed an order certifying a class of alleged Louisiana governmental entities. Addressing an issue of first impression, the United States Court of Appeals for the Fifth Circuit reversed the class certification order on the ground that the order effectively created an impermissible “opt-in” class and remanded the case to the District Court.
• Matthew Kilgore et al., v. Keybank NA et al., 673 F.3d 947, U.S. Court of Appeals, Ninth Circuit, 2012. Secured precedent-setting victory on behalf of client KeyBank in a putative student loan class action. The plaintiffs alleged violation of California’s Unfair Competition Law in connection with the student loans they received from KeyBank. The court ruled that the Federal Arbitration Act preempts state laws which attempt to limit agreements to arbitrate. The court specifically held that a line of California cases which purport to prohibit the arbitration of cases involving claims for public injunctive relief was preempted. The court upheld KeyBank’s arbitration provision contained in its student loan promissory notes and rejected arguments of unconscionability. The Ninth Circuit granted plaintiffs’ petition for a rehearing en banc, and en banc oral arguments have been scheduled for the second week of December 2012.
• Skilstaf, Inc. v. CVS Caremark Corp., et al., 669 F.3d 1005, U.S. Court of Appeals, Ninth Circuit, 2012. Secured unanimous published decision affirming the U.S. District Court for the Northern District of California’s dismissal of a putative class action filed against national pharmacy chains Supervalu Inc., New Albertson’s Inc., Walgreens Co., Longs Drugs Stores Corp., The Kroger Co., Safeway Inc., Wal-Mart Stores Inc., CVS Caremark Corp., and Rite Aid Corp., which alleged the pharmacies’ participated in an unlawful scheme to artificially inflate drug prices.

Intellectual Property

• HyperQuest, Inc. v. N'Site Solutions, Inc. and Unitrin Direct Auto Insurance, 632 F.3d 377, U.S. Court of Appeals, Seventh Circuit, 2011. Represented defendant against claims that the software our client purchased was a derivative work of the plaintiff's software. The Seventh Circuit affirmed the District Court on all grounds including the dismissal of the lawsuit with prejudice and the grant of attorneys' fees to N'Site and Unitrin Direct. The case clarifies what rights a licensee must obtain to qualify as an exclusive licensee and reiterates that the substance of the granted rights controls, not simply the use of the word "exclusive" in a license agreement. The case also clarifies a licensee bears the burden of proving it qualifies as an exclusive licensee under the copyright laws.

Insurance

• Cummins, Inc. v. Atlantic Mutual Ins. Co., 56 A.D. 3d 288, Appellate Division, First Department, 2008. Represented Cummins in dispute with insurer over operation of large deductible self-insurance program and terms of a related credit agreement. After trial court entered summary judgment against our client dismissing client’s claims against insurer, successfully obtained reversal on appeal. Appellate Division, First Department, found question of fact as to meaning of contract terms, and remanded for trial on claim that insurer overcharged client by $1 million under program.

Constitutional Claims

• Georgia Tuttle, M.D., et al. v. New Hampshire Medical Malpractice Joint Underwriting Association (JUA), et al., 159 N.H. 627; 992 A.2d 624, New Hampshire Supreme Court, 2010. Successful state constitutional challenge of insured medical providers stopping the transfer of $110 million from the New Hampshire Medical Malpractice Joint Underwriting Association. Trial court found the legislation an unconstitutional taking of property and an unconstitutional impairment of contract. On appeal, the New Hampshire Supreme Court affirmed in a 3 to 2 decision finding the legislation to be an unconstitutional impairment of contract.
• Hipolito Fontes v. The City of Central Falls, et al, 660 F. Supp. 2d 244, U.S. Court Appeals, First Circuit, 2010. Represented candidate for mayor of the City of Central Falls, Rhode Island in Section 1983 claim of unconstitutional deprivation of access to the ballot. Successfully sought dismissal of municipality's appeal to the First Circuit, resulting in an injunction against Central Falls from prohibiting the candidate from appearing on the ballot. Awarded attorney's fees.

Labor and Employment

• Friend v. Hertz, 375 Fed. Appx. 757; 2010 U.S. App. LEXIS 7657, 2010. Represented Hertz in a wage-hour class action in which the U.S. Supreme Court reversed the Ninth Circuit and ruled in favor of our client. The U.S. Supreme Court held that in almost all situations a corporation’s principal place of business is its nerve center, i.e., the place where its officers direct, control, and coordinate the corporation’s activities. In doing so, the court accepted our legal arguments and eliminated a significant split among the circuits on the subject of diversity of citizenship jurisdiction.
• Garcia and Ayon, et al v. Sun Pacific Farming Cooperative, Inc. et al, 359 Fed. Appx. 724, U.S. Court of Appeals, Ninth Circuit, 2010. Represented defendants, a major national grower/packer/shipper of table grapes and tree fruits based in California’s Central Valley, in a wage/hour class action for whom we secured a significant victory in May 2008 when the federal district judge in Fresno denied plaintiffs’ FRCP 23 Motion to certify a putative 10,000-member class in a case that plaintiffs’ counsel had valued at $176,000,000 without a hearing. The plaintiffs subsequently appealed the federal district judge’s denial of the FRCP Rule 23 Motion to the Ninth Circuit where, following oral argument, on November 13, 2009, Circuit Judges Rymer, McKeown and Smith issued a Memorandum Opinion unanimously affirming the federal district court’s decision not to certify a class. This is the only wage/hour class action among several filed against California agri-business companies over the past few years in which class certification was denied in its entirety by the district court. In July 2010, the case settled for a small fraction of what the plaintiffs initially sought.
• Russell Constantine v. Teachers College and The Trustees of Teachers College of Columbia University, 448 Fed. Appx. 92; 2011 U.S. App. LEXIS 19966, U.S. Court of Appeals, Second Circuit, 2011. Lead defense/appellate counsel for college in race and gender discrimination action. The lawsuit was commenced by a high-profile, formerly-tenured professor at Teachers College after she was terminated for plagiarism and other academic misconduct. This was the fourth action commenced by the plaintiff that we successfully handled, obtaining dismissal in each case. Following oral argument before the Second Circuit on September 23, 2011, it took the court only a week to issue its decision affirming Judge Jed Rakoff's decision granting summary judgment.
• Burgess v. Harris Beach, PLC, 346 Fed. Appx. 658; 2009 U.S. App. LEXIS 20837, U.S. Court of Appeals, Second Circuit, 2009. Successfully represented local school district against claims brought by plaintiff’s lawyer that school district and its outside employment counsel violated plaintiff’s lawyer’s First Amendment rights and committed employment discrimination and state law torts-in connection with plaintiff’s lawyer’s representation of teacher in action against school district. Second Circuit affirmed dismissal of all claims.

Environmental Litigation

• Osarczuk, et al., v. Associated Universities, Inc., commonly known as Brookhaven National Laboratory, 82 A.D. 3d 853; 918 N.Y.S. 2d 538, New York State Supreme Court, Appellate Division, 2011—present. Representing Associated Universities, Inc. and the Department of Energy against a purported class of plaintiffs who alleged that they had suffered economic loss and residential property damage as a result of certain spills which emanated from Brookhaven National Laboratory. Successfully appealed a decision by the trial court judge certifying two of six originally-proposed subclasses of plaintiffs to the Second Department (Index 2010-01532), which decertified the entire class. Presently, representing Associated Universities in opposition to plaintiffs’ effort to join 167 additional plaintiffs.

Indian Law

• Oneida Indian Nation of New York v. Madison County and Oneida County, 605 F.3d 149, U.S. Court of Appeals, Second Circuit, 617 F.3d 114, 2010. Secured a historic ruling on behalf of Madison and Oneida Counties. The ruling ended the case’s 40-year odyssey through the courts—and the Oneidas’ claim to 300,000 acres of land in central New York. The dollar value of the land claims was pegged by the Oneidas as high as $44 billion; in mediation the Oneidas stated the claims were worth $2 billion. Based on similar land claims asserted by another New York tribe, the Oneidas’ land claims, if sustained, might have resulted in a judgment of $1 billion or more. Representatives of Madison County and Oneida County hailed the ruling as a milestone achievement. Madison County leaders called it, “a great day for the citizens of Madison County—as well as the State of New York,” while the Oneida County leadership noted the decision finally resolved the Oneidas’ long-standing argument that they have the right to the land.
• Madison County and Oneida County v. Oneida Indian Nation of New York, 131 S. Ct. 704, Supreme Court of the United States. Successfully representing Madison and Oneida Counties in a case addressing the right of the counties to collect ad valorem real property taxes that are lawfully imposed on tribally-owned properties. The Second Circuit, in a decision reported at 605 F3d 149, had affirmed district court injunctions prohibiting the counties from collecting ad valorem real property taxes – even though the Supreme Court in 2005 had upheld the right of local taxing authorities to impose and collect real property taxes on the same lands. Under the reasoning of the Second Circuit, a tribe could purchase real property anywhere in the United States – not even within its ancient aboriginal territory – unilaterally and unlawfully declare the land non-taxable and refuse to pay taxes that are owed, and not be subject to any enforcement or legal action. The petition for writ of certiorari presented two questions: (1) whether tribal sovereign immunity for suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes; and (2) whether the ancient Oneida reservation in New York was disestablished or diminished. On October 12, 2010, the Supreme Court granted the petition on both grounds, and later set argument for February 23, 2011. Oneida Indian Nation successfully avoided Supreme Court review by passing a tribal ordinance purporting to waive tribal sovereign immunity from suit. Based on the tribe’s claimed waiver of its sovereign immunity from suit, Supreme Court issued a per curiam decision (January 10, 2011) vacating the Second Circuit decision and remanded for further proceedings. On remand the Second Circuit rejected the remaining grounds for upholding the injunctions and vacated the injunctions prohibiting tax enforcement. Related tax enforcement proceedings are occurring in state court. The counties recently petitioned the Second Circuit for a rehearing en banc to address the counties’ contention that the Oneidas’ historic reservation was disestablished or diminished. The Second Circuit denied the en banc rehearing petition in October 2011, but stayed issuance of the mandate pending a timely petition for certiorari. Decision on petition for writ of certiorari pending.

Alleged Wartime Misappropriation of Art

• Cassirer v. Kingdom of Spain, 616 F.3d 1019, U.S. Court of Appeals, Ninth Circuit, 2010, en banc. Lead counsel to the internationally renowned Thyssen-Bornemisza Collection Foundation of Madrid, Spain. Following the appeal, the U.S. District Court for the Central District of California granted the Foundation’s motion to dismiss confirming that the Foundation is the rightful owner of the oil painting by Camille Pissarro, Rue Saint-Honore, après-midi, effet de pluie (1897). Cassirer v. Kingdom of Spain, 05-cv-03459, Dkt. No. 159 (C.D. Cal. May 24, 2012). The court declared California’s WWII claim revival statute unconstitutional, finding that that it was preempted by the federal government’s foreign power. In dismissing the California plaintiff’s complaint with prejudice and without leave to amend, the court referenced the 1958 Settlement Agreement with the German government that fully and completely resolved the plaintiff’s claim to the painting.
• De Csepel v. Republic of Hungary, et al., U.S. Court of Appeals, D.C. Circuit, No. 12-7026, 2012. Representing Republic of Hungary and four Hungarian cultural institutions in an action challenging Hungary’s possession of more than 40 works of art. The primary issue in this case is whether the Foreign Sovereign Immunities Act (“FSIA”) of 1976 allows a U.S. court to take jurisdiction over a foreign sovereign where two treaties govern the plaintiffs’ claims and those claims are non-justiciable political questions. On September 1, 2011, the district court dismissed certain of the plaintiffs’ claims and confirmed Hungary’s rightful ownership to 11 important paintings. Hungary appealed the district court’s denial of its jurisdictional challenge pursuant to 28 U.S.C. § 1291, and sought an interlocutory review of other aspects of the decision under 28 U.S.C. § 1292(b). On December 16, 2011, the U.S. District Court for the District of Columbia certified the September 1, 2011, decision for interlocutory appeal and the U.S. Court of Appeals for the District of Columbia granted Hungary’s petition for permission to review these issues, giving Hungary the opportunity to appeal immediately the potentially dispositive challenges raised below. The appellate court’s decision to grant interlocutory review of the district court decision illustrates that there are valid grounds for difference of opinion as to whether the Herzog case can proceed in the United States.
• Sarah Blodgett Dunbar v. Claudia Seger-Thomschitz, 615 F.3d 574, U. S. Court of Appeals, Fifth Circuit, 2010. Represented the current owner of a prized early painting by noted German Expressionist Oskar Kokoschka. Considered a landmark decision because it was the first circuit court decision to address whether the Terezin Declaration (an international resolution) and U.S. policy regarding art restitution claims arising from World War II preempt state property law. The United States Court of Appeals for the Fifth Circuit rejected the argument that international/federal law trumps state law in this context, and held our client (a Louisiana family) lawfully owned the artwork in question under the laws of Louisiana. In February 2011, the U.S. Supreme Court denied the claimant's petition for a writ of certiorari.

Product Liability

• National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. American Eurocopter Corp., 692 F.3d 405, U.S. Court of Appeals, Fifth Circuit, 2012. Obtained unanimous decision for our client Eurocopter and its U.S. affiliate, American Eurocopter from a three judge panel in a published opinion which fully affirmed the dismissal by the Northern District of Texas court of a $25.5 million contribution claim against them. The original litigation arose from a fatal crash near Princeville, Kauai, of a Eurocopter helicopter that was being operated by tour operator Heli USA. National Union Fire Insurance Company, Heli USA's insurer, sued Eurocopter in Hawaii state court seeking contribution to the settlements under Hawaii law. National Union claimed that a design defect and failure to warn contributed to the accident.
• Campbell v. Ford Motor Company, 206 Cal. App.4th 15, 2012. Represented Ford Motor Company in a premises liability action filed by plaintiff who alleged she developed mesothelioma as a result of her exposure to asbestos from laundering her father’s and brother’s asbestos-covered clothing during the time they worked with asbestos as independent contractors hired by Ford to install insulation at one of its plants. At trial, the jury found Ford liable for 5% of the plaintiff’s damages. Ford appealed, claiming that it owed the plaintiff no duty in this case. The appellate court agreed that Ford, or any similarly situated employer, owed no duty to a person such as plaintiff who was allegedly exposed to asbestos brought home by others from work done on its premises, and unanimously reversed the trial court’s decision.
• Butnick, et al. v. General Motors, et al, 427 Fed. Appx. 80; 2012 U.S. App. LEXIS 14337, U.S. Court of Appeals, Second Circuit, 2011. The Second Circuit upheld the dismissal of a consolidated suit brought by approximately 70 New York City bus workers targeting our client Cummins and other makers of buses and engines over injuries allegedly caused by diesel exhaust fumes. This case involved several questions regarding federal preemption under the Clean Air Act including whether failure to warn claims are preempted along with design defect claims. After briefs were submitted to the Second Circuit, the Supreme Court decided in another preemption case construing a different federal statute, that failure to warn claims were preempted along with design defect claims because of their inherently coercive effect on manufacturers to change the product design. The Second Circuit proceeded to issue short non-precedential decision affirming the District Court’s decision. By extinguishing this case at the pleadings phase we protected Cummins from extremely costly and lengthy discovery regarding individual exposures.
• Westchester County Airport v. Signature Flight Support Corp., 83 A.D. 3d 882; 920 N.Y.S. 2d 700, New York Supreme Court, Appellate Division, Second Department, 2011. Represented client airport operations management company against claims brought by flight attendant allegedly injured by jet blast. Successfully reversed denial of summary judgment and obtained order granting summary judgment in favor of client finding no breach of duty as a matter of law.