Practice/Industry Group Overview
Sullivan & Cromwell’s appellate practice is comprised of a dedicated group of lawyers who possess the analytical and advocacy skills required to represent clients in complex cases before the United States Supreme Court, the federal Courts of Appeals, federal administrative agencies and state appellate courts.
With 14 former law clerks of the U.S. Supreme Court and a significant number of other former appellate law clerks, S&C lawyers bring to bear their extensive appellate experience in providing the highest quality representation for the Firm’s clients. S&C has broad appellate experience in areas such as antitrust, banking, corporate and securities, environmental, intellectual property, labor and employment, products liability and tax.
Our trial and appellate prowess allows S&C’s interdisciplinary team of seasoned lawyers to mold an effective legal strategy from the beginning of the case to its successful resolution. We have deep experience in:
- Motion practice before federal and state appellate courts
- Petitions for review and interlocutory appeals
- Amicus curiae briefs
- Administrative appeals before various regulatory bodies
- Briefing and arguing appeals on the merits
- Settlement negotiations
Clients for whom S&C has handled appeals include, among others: AmSouth Bancorporation, Amylin Pharmaceuticals, Avon Products, The Bank of New York, Barclays, BP, British Airways, the Canadian Government, The Clearing House, Collective Brands, Diageo, Dyson, Eastman Kodak, EnCana, First Manhattan, Goldman Sachs, JPMorgan Chase, Lone Star Funds, Microsoft, National Australia Bank, National Gypsum, Philips Electronics North America, Relational Investors, Rolls-Royce, Softbank, Tenaris, UBS, UnitedHealth Group, Vornado Realty Trust and Wachovia.
Appellate Practice Highlights
Recent successful appellate representations include, among others:
Supreme Court of Arkansas
- Since 2008, S&C has been working with the ACLU, including most recently before the Supreme Court of Arkansas, on a significant pro bono civil rights litigation, Cole v. Arkansas, challenging “Act 1,” an Arkansas state law that prohibits unmarried, cohabiting couples from applying to adopt or become a foster parent for a child in state care. S&C and the ACLU represent the plaintiffs, who include teenagers in state care who are awaiting placement with a foster or adoptive parent, two women in a long term relationship who previously had successfully adopted a special needs child and wished to apply for a second adoption, and a grandmother who was barred by Act 1 from adopting her own grandchild because of the grandmother’s long-standing relationship with her partner. Plaintiffs challenged the law on both federal and state constitutional grounds, including asserting that Act 1 violated the right of adults to maintain consensual, intimate relationships. In April 2010, after review and production of more than one million pages of documents, and subsequent oral arguments on the parties’ cross-summary judgment motions, the Hon. Christopher Piazza granted summary judgment in favor of S&C’s clients, striking down Act 1. The court held that the law “significantly burdens” the plaintiffs’ fundamental right to privacy guaranteed by the Arkansas State Constitution, and that, far from being narrowly tailored to a compelling state interest, Act 1 “casts an unreasonably broad net.” The court also found it particularly troubling that the Act targeted gay people, who cannot marry in Arkansas and, therefore, could not become eligible to adopt or foster children under Act 1. Defendants subsequently appealed this decision to the Supreme Court of Arkansas, which heard oral arguments – including that of S&C partner Garrard Beeney – on March 17, 2011. Just three weeks later, on April 7, 2011, the Supreme Court of Arkansas issued an opinion that affirmed the lower court’s ruling that Act 1 is unconstitutional. For its role in this important civil rights litigation, S&C was ranked in December 2010 by the Financial Times in its inaugural U.S. Innovative Lawyers Report as among the top U.S. firms in the pro bono category.
U.S. Court of Appeals for the Second Circuit
- On January 4, 2011, the Second Circuit affirmed the entry of a permanent injunction in favor of S&C client UBS Securities, barring a group of Swiss investors from pursuing a FINRA arbitration proceeding against UBS Securities. The Swiss investors owned shares of HealtheTech, Inc., a company for which UBS Securities served as a financial adviser and underwriter during its 2002 IPO. The investors had been given UBS Securities pitch materials prior to HealtheTech’s IPO and entered into lockup agreements with HealtheTech’s underwriters, including UBS Securities. They argued that they were therefore “customers” of UBS Securities entitled to FINRA’s arbitration. In January 2010, the Hon. Denise Cote granted UBS Securities a permanent injunction. In doing so, she rejected the investors’ arguments that their interactions with UBS Securities rendered them “customers” of UBS Securities under FINRA’s broad definition of that term. The Second Circuit summarily affirmed.
- S&C obtained an important appellate victory on behalf of Tenaris S.A. (a subsidiary of Techint) and Maverick Tube Corporation in a litigation originally brought in U.S. District Court for the Southern District of New York arising out of the $3.2 billion acquisition of Maverick by Tenaris, the leading manufacturer of tubular products for the energy industry. Holders of notes issued by Maverick pursuant to an Indenture asserted that Tenaris’ acquisition of Maverick triggered the “Public Acquirer Change of Control” provision of the Indenture, entitling the noteholders to additional consideration. The court held in October 2008 that the Public Acquirer Change of Control provision was not triggered by Tenaris’ acquisition of Maverick. The Second Circuit affirmed the district court’s decision in March 2010.
Other notable or precedent-setting appellate representations include:
U.S. Supreme Court
- The Firm represented leading banking associations in obtaining a favorable ruling from the U.S. Supreme Court barring “scheme” liability under Section 10(b) of the Securities and Exchange Act in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., which made clear that plaintiffs cannot seek to impose liability on secondary actors – such as investment banks, auditors and vendors – in a so-called “scheme to defraud.”
- Our Firm helped to achieve an important victory on behalf of our clients Wachovia Bank and The Clearing House Association in Watters v. Wachovia Bank, N.A. and Wachovia Mortgage Corp., where the U.S. Supreme Court held that state laws apply to operating subsidiaries of national banks only to the same extent as they apply to parent national banks. This decision imposes important limitations on state regulation of national banks and their operating subsidiaries.
U.S. Court of Appeals for the Second Circuit
- Acting as liaison counsel for 55 underwriting firms, S&C secured a groundbreaking decision that denied class certification in 306 IPO cases. The Second Circuit’s opinion in In re IPO Securities Litigation set the stage for a favorable settlement that was approved in 2009.
- S&C has successfully represented Goldman Sachs and its directors and senior officers in the U.S. Court of Appeals for the Second Circuit in a series of lawsuits challenging the disclosure of stock option compensation.
- S&C represented The Clearing House Association L.L.C., amicus curiae, in The Shipping Corporation of India Ltd. v. Jaldhi Overseas Pte Ltd., a decision favorable to the banking community. The decision overruled the 2002 decision in Winter Storm Shipping, Ltd v. TPI, which wreaked havoc on the administration of electronic funds transfers passing through intermediary banks in New York. This Court of Appeals decision will strengthen New York’s standing as a key center for international fund transfers and bolster the U.S. dollar as the currency of choice for international business transactions.
U.S. Court of Appeals for the Fourth Circuit
- We successfully defended Diageo, ending four years of litigation relating to allegations that Diageo’s advertising practices “targeted” persons under the legal drinking age. After plaintiffs’ legal theories were repeatedly rejected by trial and appellate courts – including the Fourth Circuit – in a series of decisions in class actions filed across the U.S., plaintiffs agreed to terminate all remaining actions and appeals. Diageo paid nothing.
- S&C achieved significant victories as lead defense counsel for Microsoft in connection with more than 100 antitrust actions brought against the company. These actions include class actions by consumers and actions by competitors of Microsoft. Dozens of these cases have been dismissed with prejudice. Highlights include the favorable ruling from the U.S. Court of Appeals for the Fourth Circuit in Deiter v. Microsoft Corp., whereby potential exposure amounting to billions of dollars was eliminated; and another success in Kloth v. Microsoft, unanimously affirming the dismissal of claims by a putative class of tens of millions of indirect purchasers of Microsoft software seeking in excess of $10 billion.
U.S. Court of Appeals for the Fifth Circuit
- In the Enron securities class action – widely considered to be the most complex and largest securities class action litigation ever – S&C has represented defendants Barclays PLC, Barclays Bank PLC and Barclays Capital Inc. (collectively, “Barclays”) for more than nine years. Our defense strategy proved highly successful: The U.S. Court of Appeals for the Fifth Circuit reversed the class certification order and the U.S. Supreme Court denied plaintiffs’ petition for review of the Fifth Circuit’s decision. In March 2009, Barclays achieved a successful final result of that litigation, obtaining summary judgment from the district court dismissing the securities fraud claims brought by the class against Barclays and Barclays’ co-defendants, Credit Suisse and Merrill Lynch. Plaintiffs had sought damages of $40 billion under the theory that financial institutions had a duty to disclose Enron’s financial position to investors; other financial institution defendants had settled these claims, agreeing to pay a total of $6.6 billion to plaintiffs in 2005.
U.S. Court of Appeals for the Eighth Circuit
- S&C obtained a victory for UnitedHealth Group, Inc. in litigation in the District of Minnesota and before the Eighth Circuit, preventing UnitedHealth noteholders from accelerating $850 million of UnitedHealth notes.
Delaware Supreme Court
- S&C achieved a significant victory on behalf of former and current directors of AmSouth Bancorporation in obtaining a precedent-setting decision from the Delaware Supreme Court. The decision sets high hurdles for plaintiffs attempting to impose liability on corporate directors.
- S&C represented CA in litigation before the Delaware Supreme Court in which CA sought to exclude from its proxy statement a bylaw that, if adopted, would have required CA to reimburse all reasonable expenses of any shareholder that nominated a “short slate” of director candidates to CA’s Board, so long as at least one candidate on the short slate was elected. In July 2008, the Delaware Supreme Court issued a groundbreaking decision in favor of CA, holding that bylaws may regulate the process and procedures by which the boards of Delaware corporations act, but may not mandate how the board should decide specific substantive business decisions. The Court agreed with CA that the proposed bylaw was invalid because the bylaw failed to provide CA’s Board with a “fiduciary out” to deny reimbursement where required to comply with Delaware law or the Board’s fiduciary duties.