Katten believes that written advocacy is a distinct subset of litigation. It covers not only compelling appellate briefs, but also the development and presentation of persuasive arguments before trial courts and administrative agencies.
The attorneys of Katten's Appeals and Critical Motions group have honed the skills necessary to present forceful and convincing arguments on dispositive issues — skills that they first developed as law clerks to federal and state appellate judges, as members of the Department of Justice, or through repeat appearances before appellate courts across the country. And although we are appellate advocates first and foremost, we regularly work with members of Katten's other litigation subspecialties at trial, and even before a case is initiated.
Always prepared for appeal
When Katten handles a matter from its inception, the Appeals and Critical Motions team frequently gets involved at the pretrial stage to help develop arguments and strategies, and to convince prosecutors and regulators about legal infirmities in the enforcement actions that they are contemplating. Once a case is initiated, we fully integrate with the trial team — not simply to preserve issues for appeal, but to help craft the best possible arguments at the trial stage. At the appellate stage, members of the group continue teaming with members of Katten's other litigation subspecialties, tapping into a wealth of subject matter knowledge, and we are separately called upon to take over high-stakes appeals from other law firms or provide strategic advice behind the scenes.
Hundreds of appeals
We have briefed and argued several hundred appeals in federal and state appellate courts and in the US Supreme Court, covering a range of legal subjects and industries — many highly technical, and all of great consequence to our clients. Our advocacy has spanned areas such as environmental and workplace safety, securities and financial services, health care, intellectual property (patent, copyright and trademark), real estate, media, consumer class action, and white collar criminal defense.
- Represented 76 New York-area hospitals in the US Court of Appeals for the Second Circuit in a case that, while upholding the Centers for Medicare & Medicaid Services' (CMS) adoption of new Metropolitan Statistical Areas, held unlawful a determination by CMS to phase in a congressionally mandated Occupations Mix Adjustment. The victory was worth $180 million to our clients. Bellevue Hosp. Center v. Leavitt, 443 F.3d 163 (2d Cir. 2006).
- Represented biopharmaceutical company Amarin in an appeal before the US Court of Appeals for the Third Circuit. The company had been pursuing FDA approval to market its signature drug for a new indication. A group of plaintiffs filed a putative class action under the Securities Exchange Act of 1934, alleging that Amarin misled investors about the prospects of FDA approval. The Third Circuit affirmed the dismissal of the plaintiffs’ complaint.
- Successfully represented major health care system and university before the US Court of Appeals for the Fourth Circuit in multiple lawsuits alleging fraud and retaliation under the False Claims Act and discrimination and retaliation under Title VII of the Civil Rights Act of 1964. Members of the Appellate and Critical Motions group secured the dismissal of all claims from the District Court after proving that the plaintiff had engaged in litigation-related misconduct. The Fourth Circuit affirmed the sanction of dismissal in a unanimous, precedential opinion. Rangarajan v. Johns Hopkins Univ., 917 F.3d 218 (4th Cir. 2019), aff’g, 262 F. Supp. 3d 259 (D. Md. 2017).
Copyright and trademark
- Represented Microsoft Corporation in the US Court of Appeals for the Third Circuit in a reverse trademark infringement case in which Kinbook LLC alleged that Microsoft's trademarks "Kinect" and "KIN" were confusingly similar to Kinbook's "Kinbox" and "Munchkinbox" trademarks. In a victory for our client, the Third Circuit affirmed the district court's holding that no reasonable jury could find a likelihood of confusion between the parties' marks.
- Represented NBCUniversal and the producers of the series Heroes in the US Court of Appeals for the Ninth Circuit in a case filed by Jazan Wild, the graphic novel writer of Carnival of Souls, alleging a federal claim for copyright infringement and various state law claims. The Ninth Circuit ruled in favor of our clients, affirming the district court's dismissal, with prejudice, of the copyright claim for lack of substantial similarity. Wild v. NBCUniversal, 513 F. App'x 640 (9th Cir. 2013).
- Represented an American media conglomerate in the California Court of Appeal in a case granting a rarely issued peremptory writ of mandate directing the trial court to grant summary judgment for our clients. The opinion creates important new precedent in the entertainment industry on the statute of limitations that applies to idea submission claims. The court ruled that plaintiffs' claims accrued and the statute of limitations began to run no later than the date the television series in question was first released to the public and that neither the discovery rule nor the continuous accrual doctrine could extend the accrual date past the initial telecast of the first episode of the series. This is the first-known published opinion applying the statute of limitations on idea submission claims to episodic television.
- Represented Relativity Media and the creators and producers of the horror film The Unborn in the US Court of Appeals for the Ninth Circuit in a case filed by screenwriter Daniel Segal, alleging a federal claim for copyright infringement and a state law claim for breach of implied contract. The Ninth Circuit ruled in favor of our clients, affirming the district court's dismissal, with prejudice, of the copyright claim for lack of substantial similarity. The Ninth Circuit also affirmed the district court's denial of leave to amend to replead the claim for breach of implied contract. Segal v. Rogue Pictures, 544 F. App'x 769 (9th Cir. 2013).
- Represented appellant Apotex on appeal of a district court decision relating to the blockbuster drug Plavix. The court reversed an award of more than $100 million in prejudgment interest against our client under a settlement agreement. Sanofi-Aventis v. Apotex Inc., 659 F.3d 1171 (Fed. Cir. 2011).
- Represented defendant-appellant Apotex, Inc. in appeal of a district court decision relating to the manufacture of a generic modafinil-based drug used to treat sleeping disorders. The Federal Circuit affirmed the decision of the district court, holding that the patent Apotex challenged was invalid and unenforceable based on inequitable conduct. Apotex v. Cephalon, 500 F. App'x 959 (Fed. Cir. 2013) (per curiam).
- Represented multinational electronics manufacturer in defense of patent infringement claims. The two patents at issue covered the scalable display of Internet content on mobile devices. The Patent Trial and Appeal Board held all of the asserted patent claims unpatentable, and the Federal Circuit affirmed the PTAB's decision in favor of our client. Softview LLC v. Kyocera Corp., Nos. 14-1599, 14-1600 (Fed. Cir. Feb. 9, 2015).
- Represented The Retail Property Trust, a wholly owned subsidiary of Simon Property Group, Inc., in the US Court of Appeals for the Ninth Circuit, arguing that the Labor Management Relations Act does not preempt traditional state-law property claims for trespass and private nuisance asserted against a labor union that was arguably engaged in a secondary boycott at the time. The Ninth Circuit agreed in an important, precedential opinion that overturned an adverse decision by the district court. Retail Property Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938 (9th Cir. 2014).
- Represented owner of a shopping mall in Rockville, Maryland, in a case regarding client's ongoing efforts to redevelop the mall into a major mixed-use, town-center-style development. An anchor tenant of the mall sought to enjoin further redevelopment of the mall under a reciprocal easement agreement. In a published decision, the US Court of Appeals for the Fourth Circuit affirmed the denial of the anchor tenant's request for injunctive relief, holding that the proposed injunction would have required the district court to either supervise the restoration of the mall or freeze the mall's ongoing redevelopment efforts, both of which the court of appeals deemed infeasible. Lord & Taylor, LLC V. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015).
Consumer class action
- Represented Title Lenders in the Supreme Court of Missouri. We obtained a unanimous decision for our client, holding that the presence of a class action waiver is not, in itself, grounds for finding that an arbitration agreement is "unconscionable" under state law that is otherwise governed by the Federal Arbitration Act. Robinson v. Title Lenders, Inc., 364 S.W.3d 505 (Mo. 2012).
- Represented taxpayers in the US Court of Appeals for the Federal Circuit and US Supreme Court in a case where we obtained a ruling in favor of our clients on the issue of whether an understatement of income resulting from an overstatement of tax basis for sold property can qualify as an omission from gross income giving rise to an extended six-year (as opposed to three-year) period for tax assessment. The victory against the IRS was a multimillion-dollar win for our clients and was projected to have as much as a billion-dollar impact in tax cases across the country. Grapevine Imports, Ltd. v. United States, 636 F.3d 1368 (Fed. Cir. 2011), vacated and remanded by 132 S. Ct. 2099 (2012).
- Represented transgender ironworker pro bono in an appeal before the US Court of Appeals for the Second Circuit alleging discrimination and retaliation against his union and two of its officials. In a precedential opinion reinstating the client's lawsuit, the Second Circuit recognized for the first time that allegations of transgender discrimination are sufficient to state a claim for breach of a labor union's duty of fair representation, an implied cause of action under the National Labor Relations Act. The Second Circuit also ordered the district court to reconsider the client's claims of discrimination under Title VII of the Civil Rights Act of 1964, holding that the failure to exhaust administrative remedies with the Equal Employment Opportunity Commission did not mandate dismissal, and recognizing that the client's failure to exhaust might be excused on one or more equitable grounds. The Second Circuit lauded Katten's work during the argument and noted in its opinion that the client was "ably represented" on appeal. Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015).
- Represented pro bono, in cooperation with the National Immigrant Justice Center, in the US Court of Appeals for the Seventh Circuit a woman who had emigrated from Nicaragua and was facing removal from the United States based on "fraudulent marriage" charges. Despite our client's repeated requests, the immigration judge denied her a subpoena to obtain the opportunity to cross-examine her estranged husband—the only source for the charges—who had fled the jurisdiction by the time of her hearing. The Seventh Circuit held that the removal had been ordered in violation of our client's procedural rights and reversed the removal order. The case was not only a victory for our client, but an important decision protecting an alien's statutory entitlement to cross-examine adverse witnesses. Malave v. Holder, 610 F.3d 483 (7th Cir. 2010).
- Represented, as pro bono co-counsel with the American Civil Liberties Union ACLU and Lambda Legal Defense & Education Fund, Inc., plaintiff transgender prison inmates in the US Court of Appeals for the Seventh Circuit in a facial challenge to a Wisconsin statute prohibiting the use of public funds for hormone therapy or sexual reassignment surgery for inmates of Wisconsin prisons, without regard to medical need as determined by the Wisconsin Department of Corrections' physicians. The Seventh Circuit unanimously affirmed the district court in holding that the statute, on its face, violated the Eighth Amendment's ban on cruel and unusual punishment. Fields v. Smith, 653 F.3d 550 (7th Cir. 2011).
- Represented indigent criminal defendant pro bono. In a unanimous, published decision, the US Court of Appeals for the Fourth Circuit held that the government must raise at sentencing all predicate offenses that serve as a basis for a career-offender enhancement under the Sentencing Guidelines. If the government fails to do so, it may not rely on a substitute predicate in a collateral proceeding or at resentencing. The decision extends United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), which had reached the same result for statutory mandatory minimums under the Armed Career Criminal Act. United States v. Winbush, --- F.3d --- (4th Cir. 2019).
- Represented corporate client charged with felony violations of the Outer Continental Shelf Lands Act. Members of the Appeals and Critical Motions practice obtained the dismissal of all felony counts of the indictment on the basis that the federal government had failed to promulgate regulations that imposed liability on contractors for failing to comply with substantive regulations enacted under the Act. United States v. Wood Group Prod. Servs. Network, Inc., No. 15-cr-197, 2016 WL 1458925 (E.D. La. Apr. 14, 2016), appeal dismissed, No. 16-30561 (5th Cir.).
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Publication | April 2, 2018