Practice Areas & Industries: Winston & Strawn LLP

Practice/Industry Group Overview

Winston & Strawn’s appellate and critical motions practice provides its clients with sophisticated appellate advocacy and analysis — beginning before trial and continuing to the U.S. Supreme Court. This group was formed in 2005, organized around appellate attorneys in our Washington D.C. and Chicago offices. Since then, the group has assembled a remarkable collection of talent from both inside and outside the firm, with members in all of our domestic offices, and has quickly established itself in a position of prominence in U.S. Supreme Court practice and high-stakes appellate work across the nation.

We pride ourselves on providing a highly effective “interface” between the business community and the courts, and particularly the U.S. Supreme Court.  In the short time since its inception, members of our appellate group have argued five cases before the U.S. Supreme Court and submitted briefs in dozens more, including in several of the most high-profile cases on the Court’s docket.  Our attorneys — many of whom served as law clerks either at the Supreme Court or in other prestigious appellate courts — have collectively argued cases in all of the federal courts of appeals, as well as in state supreme and appellate courts across the country.  Clients seek out Winston appellate lawyers for their clear and persuasive briefs, their strong oral advocacy, their extensive experience in many of our nation’s most influential appellate courts, their sensitivity to clients’ cost concerns, and their collegial approach to working with clients and other lawyers.

Services Available

Great appellate work begins at the trial level.  Our appellate attorneys often work with trial teams to lay the groundwork for future appeals.  They partner with trial counsel to ensure that the critical motions filed before and after trial are prepared with an eye toward protecting favorable judgments, while enhancing the probability that unfavorable judgments will be reversed.  Because of this early integration with Winston trial teams, our appellate attorneys have an intimate knowledge of these cases and can move quickly when a critical motion or appeal is required.  The firm’s appellate group also routinely consults with clients and trial counsel on significant legal issues before and during trial, ranging from jurisdictional and venue issues to the admissibility of expert evidence to the development of a strategy on claims for punitive damages.  Our attorneys are also are skilled at obtaining interlocutory review and will vigorously seek such relief when necessary.  In short, our appellate attorneys work, and excel, in the trenches of trial.
 
Representative Matters

U.S. Supreme Court Representative Matters
Winston appellate attorneys have significant experience in Supreme Court practice and regularly appear in the Supreme Court on a variety of matters. In the current Term alone, our attorneys have argued or submitted briefs or petitions in more than a dozen cases before the Court.      
 
Federal and State Appellate Court Representative Matters
Collectively, Winston & Strawn attorneys have appeared in all of the U.S. Courts of Appeals and in a wide range of state intermediate courts and courts of last resort.      
 
Puerto Rico Ports Authority v. Carnival Cruise Lines
Puerto Rico Ports Authority
Winston & Strawn's maritime & admiralty and appellate practice groups collaborated together to achieve a major victory before the DC Circuit for client Puerto Rico Ports Authority (PRPA). The trial ended three separate cases involving over $100 million in damages, and importantly establishing that PRPA is an “Arm of the State” immune from suit in federal courts under the doctrine of sovereign immunity. Winston's martime practice represented PRPA in the proceedings before the Federal Martime Commission and DC Circuit, and the appellate group argued the PRPA appeal.      
 
Rose v. The American Tobacco Co., et al.
Philip Morris USA Inc.
Winston & Strawn attorneys, along with co-counsel, obtained a major victory for Philip Morris USA before the Appellate Division, First Department, New York's intermediate appellate court. In early 2005, after a two-and-half-month trial, a New York Supreme Court jury assessed $1.7 million in compensatory damages and $17 million in punitive damages against our client. The case was tried on the single theory that regular full-flavored cigarettes were defectively designed.      
 
In re Multi-Circuit Episcopal Church Litigation
The Falls Church
Winston & Strawn represents 11 former Episcopal congregations in litigation with the Episcopal Church over ownership of property used by the 11 congregations. On April 3, 2008 in an 83-page decision, a Virginia state court judge agreed that the congregations had the right to invoke a Virginia statute that gives local congregations the right to decide, by majority vote, which branch of a denomination to join in the event of a denominational division. 

Caraco Pharmaceuticals v. Forest Laboratories
Caraco Pharmaceutical Laboratories, Ltd.
Winston & Strawn represented Caraco Pharmaceuticals, a subsidiary of Sun Pharmaceuticals, in a patent case involving U.S. Patent No. 6,916,941, one of two critical patents that protects Lexapro, a $2 billion-per-year anti-depressant manufactured by Forest Laboratories. Caraco sought a declaratory judgment action from the district court stating that the ‘941 patent was invalid or not infringed, a requirement under the Hatch Waxman Act in order for Caraco to enter the market for generic Lexapro. Forest unilaterally granted Caraco a covenant not to sue for infringement, seeking to avoid trial and arguing that the covenant eliminated the case or controversy—thus depriving the district court of jurisdiction. The district court agreed and dismissed the case. Caraco appealed to the Federal Circuit, which reversed and remanded the district court decision. The Federal Circuit found that an Article III case or controversy existed because, even though Caraco was not at risk of being sued on the '941 patent, Caraco suffered a cognizable injury-in-fact based on its inability to enter the market for generic Lexapro—an injury traceable to Forest's action in filing a New Drug Application for Lexapro with the FDA. After further proceedings, Caraco should be able to go to market with generic Lexapro at least six months (and possibly several years) earlier than it otherwise could have.
 
The Regents of The University of California, Abbott Molecular, Inc. and Abbot Laboratories, Inc. v. Dakocytomation California Inc.
Abbott Laboratories
In an appeal concerning a pioneering patent on DNA-based diagnostic technology, Winston & Strawn attorneys prevailed before the the Federal Circuit Court of Appeals on behalf of our clients Abbott Laboratories and The Regents of the University of California.      
 
Chamberlain Group v. Lear Corporation
Lear Corporation
The Federal Circuit Court of Appeals issued a unanimous opinion reversing and vacating a preliminary injunction issued by the Northern District of Illinois against Winston & Strawn client Lear Corporation. The preliminary injunction had prohibited Lear from making and selling its Car2U universal garage door opener device, except under its existing contracts with General Motors. 

In re: Christian County Generation, LLC PSD Appeal No. 07-01
Christian County Generation, LLC
Winston & Strawn represented Christian County Generation, LLC before the Environmental Appeals Board in Washington, D.C. regarding a Petition for Review of an air operating permit issued to our client by the Illinois Environmental Protection Agency. The Petition for Review was filed in opposition to the issuance of the permit and the construction of a state-of-the-art, $2 billion clean-coal electric energy facility that Christian County Generation plans to build near Taylorville, Illinois. The filing of the Petition automatically rendered the issued air permit ineffective, preventing any further construction on the project pending the Environmental Appeals Board decision. The Board decided in favor of our client and denied the Petition for Review.

Diaz-Ramos v. Hyundai
Hyundai Motor Company
A Winston & Strawn appellate team obtained an important ruling for client Hyundai Motor Company in a consumer class action brought under the laws of Puerto Rico. The U.S. Court of Appeals for the First Circuit affirmed the district court's decision dismissing a consumer class action claiming unfair trade practices based upon Hyundai's decision to limit an automobile recall to certain Northern U.S. states. In its decision, the First Circuit adopted the Winston team's argument that class actions cannot be maintained unless the named plaintiffs have valid claims and that the statutes authorizing class actions generally should not be interpreted to create private rights of action, holding that there was no evidence of a legislative determination to create such a private right.

Alstom Power, Inc. v. BBF Inc. (f/k/a Balcke Durr, Inc.)
Alstom Group
Winston & Strawn represented Alstom in this contract dispute that arose out of design/build subcontracts for major power plant equipment. Alstom contracted with BBF to supply and install air-cooled condensers for power plants in Bellingham, Massachusetts, and Midlothian, Texas. The contract allowed for liquidated damages if the condensers did not meet certain performance guarantees. Other issues in dispute involved responsibility for work scope changes and cost and schedule overruns. The parties agreed that the outcome of all disputes would be determined by arbitration. Winston obtained a $3.5 million award for Alstom and defeated BBF’s $8 million counterclaim. The award was confirmed by a Richmond, Virginia, circuit court on March 20, 2006. On June 8, 2007, the Virginia Supreme Court affirmed in a decision addressing the scope of review of an arbitration award in a complex construction contract dispute.
 
Kanter v. Barella, 489 F.3d 170 (3d Cir. 2007)
MedQuist Inc.
Winston & Strawn represented MedQuist, a medical transcription service provider, in a derivative lawsuit asserting a claim for breach of fiduciary duty against our client, its majority shareholder, Philips, and ten current and former MedQuist board members arising from allegations that MedQuist had systematically overbilled its customers for medical transcription services. This action, brought in the District of New Jersey, was one of six class actions filed following a July 2004 press release in which MedQuist announced the findings of an independent review of its billing methods. The New Jersey district court dismissed the derivative suit against MedQuist for failure of the plaintiff to make a demand on the MedQuist board and plaintiff’s inability to plead that the board failed to properly monitor MedQuist’s financial transactions and reporting. The plaintiff appealed this decision to the Third Circuit, which handed down a complete victory for MedQuist, affirming the District of New Jersey opinion dismissing with prejudice the shareholder derivative lawsuit against MedQuist. The appellate court also affirmed the district court’s decision denying the plaintiff the opportunity to replead.

J.B.D.L. Corp., et al. v. Wyeth-Ayerst Laboratories, Inc., et al.; CVS Meridian Inc. and Rite Aid Corp. v. Wyeth, 485 F.3d 880 (6th Cir. 2007)
Wyeth
Winston & Strawn represented Wyeth Pharmaceuticals and Wyeth in an antitrust class action brought by direct purchasers of Wyeth’s estrogen therapy product, Premarin®, one of the most prescribed medications in the world. The plaintiffs claimed that Wyeth violated Sections 1 and 2 of the Sherman Act by entering into restrictive rebate contracts with pharmacy benefit managers (PBMs) and other managed care organizations, allegedly leading to higher prices to direct purchasers. This case consolidated a class action and another lawsuit brought under Section 2 of the Sherman Act by two opt-outs, CVS Meridian, Inc. and Rite-Aid Corporation. In June 2005, the federal court in the Southern District of Ohio granted Wyeth’s motion for summary judgment, finding that Wyeth’s conduct did not violate antitrust laws. The court found that plaintiffs had failed to produce sufficient evidence to establish that they had actually been injured by the challenged conduct. The plaintiffs appealed this decision to the Sixth Circuit. In a decisive victory, a unanimous Sixth Circuit panel affirmed the summary judgment dismissal of the class action brought against Wyeth Pharmaceuticals and Wyeth.
 
Abbott Laboratories v. Baxter, Inc. 
Abbott Laboratories
For the past several years, W&S has represented Abbott Laboratories and Central Glass, Ltd. of Tokyo in connection with various patent and licensing matters regarding Abbott’s drug Ultane, an inhalant anesthetic. In 2003, the United State Supreme Court denied a writ of certiorari brought by Baxter Healthcare and upheld a ruling by the Seventh Circuit in favor of Abbott, which precluded Baxter from using a generic version of the drug to compete with Abbott until the expiration of their contractual relationship in December 2005. We are also representing Abbott and Central Glass in related patent infringement matters against Baxter involving a patent our clients received in connection with the addition of an inhibitor to Ultane (need registered trademark sign after Ultane) to prevent Lewis Acid degradation. Specifically, Abbott and Central Glass are challenging Baxter's infringement of two continuation patents in the Northern District of Illinois. On December 22, 2006, a Lake County Circuit Court approved and entered a Permanent Injunction in favor of Winston & Strawn client Abbott Laboratories against Baxter Healthcare; the entry of this Order culminated almost one year of emergency injunction proceedings, an appeal of a Temporary Restraining Order, and extensive motion and discovery practice. Abbott had claimed that Baxter had improperly used improper marketing tactics in advising potential purchasers of Baxter's generic inhalent anesthetic drug Sevoflurane; specifically, Baxter suggested to potential customers that they could use an Abbott owned vaporizer to administer the Baxter generic drug product. Abbott believed that such conduct constituted unfair competition and tortious interference with contract. In the final Permanent Injunction Order entered on December 22, Baxter conceded that it had engaged in this improper conduct and was Ordered to engage in several remedial actions to cure the wrongdoing.
   
Mikolajczyk v. Ford
Ford Motor Company
Ford Motor Company hired Winston & Strawn as appellate counsel in Mikolajczyk v. Ford, one of the 100 largest verdicts of 2005. The $27 million verdict arose from a strict product liability design defect case involving the front seat of a 1996 Ford Escort. The plaintiff was killed when a drunk driver rear-ended his Ford Escort at 55 miles per hour. The plaintiff (through his wife as administrator) sued the driver for negligence and Ford for strict product liability, alleging that the design of the seat, which yielded backward due to the forces of the accident, contributed to his death. The appeal, before the Illinois Appellate Court, First District, raised significant issues about design defect law. Winston & Strawn prevailed in the appeal, with the appellate court vacating the $27 million judgment and remanding for a new trial on damages.
 
United States v. Patrick J. Roxworthy, VP-Tax for Yum! Brands
Yum! Brands, Inc.
Winston & Strawn represented Yum! Brands, the largest restaurant company in the world and the owner of the Pizza Hut, Kentucky Fried Chicken, and Taco Bell restaurant chains, in an appeal before the Sixth Circuit of a district court ruling in a tax controversy case. The Internal Revenue Service brought an enforcement action against Yum! in the Western District of Kentucky seeking the production of tax opinions Yum! had solicited from its accountant several years earlier. These opinions concerned an anticipated challenge to the company’s tax treatment of transactions relating to a captive insurance company. Yum! argued that the tax opinions were protected by the work product doctrine, but the district court ordered the production of the opinions. Yum! appealed this decision to the Sixth Circuit, which unanimously reversed the district court’s order and ruled that the IRS’s summons must be quashed.

Engle v. Philip Morris USA
Philip Morris USA Inc.
Philip Morris USA and other tobacco companies won a landmark decision in the Engle appeal when Florida’s intermediate appellate court overturned the largest money judgment in history—-$145 billion in punitive damages awarded to an estimated class of 700,000 Florida smokers—ordered decertification of the class.      
 
Price, et al. v. Philip Morris USA (Appeal)
Philip Morris USA Inc.
On December 15, 2005, the Illinois Supreme Court issued a landmark decision in Price v. Philip Morris USA Inc., reversing a Madison County circuit court's $10.1 billion judgment against client Philip Morris USA and directing entry of judgment for the company. The Price class action alleged that by marketing Marlboro Lights and Cambridge Lights as "light," and Marlboro Lights as having "lowered tar and nicotine," Philip Morris USA violated the Illinois Consumer Fraud and Deceptive Practices Acts because the cigarettes did not deliver "lowered tar and nicotine" to smokers.      
 
In re Parmalat Securities Litigation
Grant Thornton LLP
In re Parmalat Securities Litigation, 375 F. Supp. 2d 278 (S.D.N.Y. 2005) (argued) Winston attorneys briefed and argued a successful motion to dismiss on behalf of Grant Thornton LLP in securities litigation arising out of the widely publicized collapse of Parmalat, the Italian dairy conglomerate. 

ShuffleMaster v. VendingData
VendingData Corporation
In 2004, the Nevada District Court granted ShuffleMaster’s motion for preliminary injunction in a patent infringement case against VendingData, thereby enjoining VendingData from manufacturing and marketing its Poker One card shuffler, a product critical to VendingData’s continuing success in the card shuffler market. VendingData immediately retained Winston & Strawn to file an emergency appeal with the Federal Circuit. Our attorneys persuaded the appeals court that the district court likely had erred in construing the patent claims, and the Federal Circuit granted VendingData’s motion to stay enforcement of the preliminary injunction order. Later, the Federal Circuit reversed the district court's decision and vacated the preliminary injunction.

Smurfit Newsprint v. Southeast Paper Mfg. Co.
Smurfit Stone Container Corporation
Winston & Strawn represented Smurfit Newsprint in an appeal before the Seventh Circuit, which ruled in favor of our client.      
 
Bela Lisa Friedman v. Quest International Fragrances Co.
Quest International Fragrances Co.
Our firm defended Quest International Fragrances Co. against a $60 million theft of trade secrets, unfair business practices, and breach of contract action brought in the Central District of California by a former consultant.      
 
City of Chicago handgun litigation (4 cases)
Smith & Wesson Corp.
We represented Smith & Wesson as local counsel in two sets of related cases in which the City of Chicago and certain decedents of individuals killed by gun violence sued a large number of gun manufacturers, distributors, and dealers for negligence and public nuisance. We sought dismissal of all claims as lacking proper legal basis and won pre-trial dismissal of some but no all of the claims at the trial court level. 

Medrad, Inc. v. MRI Devices, Inc.
MRI Devices, Inc.
In a case involving an allegedly pioneering patent on MRI technology, Winston & Strawn recently argued on behalf of MRI Devices before the Federal Circuit Court of Appeals. The Federal Circuit affirmed that the plaintiff’s patent was invalid based on prior art publication and invention. The Court also ruled that “a particular term used in one patent need not have the same meaning when used in an entirely separate patent.” W&S attorneys had previously defended MRI Devices in a four-day trial in U.S. District Court for the Eastern District of Pennsylvania against infringement claims brought by Medrad. Winston & Strawn not only battled back a preliminary injunction motion for MRI, but also obtained a finding that the patent was invalid as a matter of law. We then handled the appeal before the Federal Circuit, which ruled in our client’s favor on every disputed issue.

International Gaming Technologies v. WMS Gaming, Inc.
WMS Gaming
We represented WMS Gaming before the Federal Circuit in this patent infringement case brought by International Gaming Technologies involving the technology used in slot machines to determine the odds of winning or losing a particular game. Our client achieved a favorable settlement after the Federal Circuit reversed a significant portion of the Northern District of Illinois’ decision in favor of the plaintiff. The case is a leading decision on applying circuit design patents to software implementations of the disclosed functionality.            
 
Nobelpharma v. Implant Innovations, Inc.
Implant Innovations Inc.
Our attorneys defeated the plaintiff’s infringement claims and won a jury verdict of $9.9 million on the antitrust counterclaim of our client Implant Innovations (3i). The verdict was affirmed by the Federal Circuit and the case is now the leading Federal Circuit decision on antitrust claims asserted in the patent context. The judgment was initially overturned by the Federal Circuit, and then reinstated in an en banc opinion filed by that Court. After adding in costs, interest, and attorneys’ fees, Nobelpharma eventually paid $15 million to our client.      
 
Appellate Cases - Administrative Law
Our attorneys have handled appeals involving a variety of legal issues, including those in the administrative law area.      
 
Appellate Cases - Antitrust
Our attorneys have handled appeals involving a variety of legal issues, including those in the antitrust area.      
 
Appellate Cases - Automotive Industry
Our attorneys have handled appeals involving a variety of legal issues, including those related to the automotive industry.      
 
Appellate Cases - Banking and Financial
Our attorneys have handled appeals involving a variety of legal issues, including those in the banking and financial area.      
 
Appellate Cases - Breach of Contract
Our attorneys have handled appeals involving a variety of legal issues, including those involving breach of contract claims.      
 
Appellate Cases - Civil Rights
Our attorneys have handled appeals involving a variety of legal issues, including those in the civil rights area.      
 
Appellate Cases - Class Actions
Our attorneys have handled appeals involving a variety of legal issues, including those in the class action area.      
 
Appellate Cases - Communications
Our attorneys have handled appeals involving a variety of legal issues, including those related to the communications industry.      
 
Appellate Cases - Constitutional Law
Our attorneys have handled appeals involving a variety of legal issues, including those in the constitutional law area.      
 
Appellate Cases - Criminal Law and Procedure
Our attorneys have handled appeals involving a variety of legal issues, including those in the area of criminal law and procedure.      
 
Appellate Cases - Defamation and Product Disparagement
Our attorneys have handled appeals involving a variety of legal issues, including those in the area of defamation and product disparagement.      
 
Appellate Cases - Energy
Our attorneys have handled appeals involving a variety of legal issues, including those related to the energy industry.      
 
Appellate Cases - Expert/Scientific Evidence
Our attorneys have handled appeals involving a variety of legal issues, including those in the expert/scientific evidence area.      
 
Appellate Cases - Health Care Regulation
Our attorneys have handled appeals involving a variety of legal issues, including those in the health care regulatory area.      
 
Appellate Cases - Higher Education
As part of the firm's robust litigation practice, our attorney have litigated several matters on behalf of higher education clients at the appellate level.      
 
Appellate Cases - Insurance
Our attorneys have handled appeals involving a variety of legal issues, including those related to the insurance industry.      
 
Appellate Cases - Intellectual Property
Our attorneys have handled appeals involving a variety of legal issues, including those in the intellectual property area.      
 
Appellate Cases - Jurisdiction and Procedure
Our attorneys have handled appeals involving a variety of legal issues, including jurisdiction and procedure.      
 
Appellate Cases - Labor and Employment/ERISA
Our attorneys have handled appeals involving a variety of legal issues, including those in the labor and employment and ERISA areas.      
 
Appellate Cases - Preemption
Our attorneys have handled appeals involving a variety of legal issues, including preemption.      
 
Appellate Cases - Product Liability and Personal Injury
Our attorneys have handled appeals involving a variety of legal issues, including those in the product liability and personal injury areas.      
 
Appellate Cases - Punitive Damages
Our attorneys have handled appeals involving a variety of legal issues, including punitive damages.      
 
Appellate Cases - Real Estate and Construction Our attorneys have handled appeals involving a variety of legal issues, including those related to the real estate and construction industries.      
 
Appellate Cases - Restructuring and Insolvency
Our attorneys have handled appeals involving a variety of legal issues, including those in the restructuring and insolvency area.      
 
Appellate Cases - Securities Fraud
Our attorneys have handled appeals involving a variety of legal issues, including those in the securities fraud area.      
 
Appellate Cases - Statutory Interpretation
Our attorneys have handled appeals involving a variety of legal issues, including statutory interpretation.      
 
Appellate Cases - Tax
Our attorneys have handled appeals involving a variety of legal issues, including those in the tax law area.      
 
Appellate Cases - Transportation
Our attorneys have handled appeals involving a variety of legal issues, including those related to the transportation industry.