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 13 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
- Strategic advice in multi-case controversies
Selected Clients
Clients for whom S&C has handled appeals include, among others: AmSouth Bancorporation, Avon Products, The Bank of New York, Barclays, British Airways, the Canadian Government, The Clearing House, Dyson, Eastman Kodak, EnCana, First Manhattan, Goldman Sachs, JPMorgan Chase, Microsoft, National Australia Bank, National Gypsum, Philips Electronics North America, Relational Investors, Rolls-Royce and Softbank.
Appellate Practice Highlights
Recent successful appellate representations include, among others:
- 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 obtained an important victory on behalf of the Central Bank of Argentina ("BCRA") in the U.S. Court of Appeals for the Second Circuit in ongoing litigation concerning the Foreign Sovereign Immunities Act. The case arose from the Republic of Argentina's financial default in the aftermath of what has been called the largest non-wartime financial crisis in world history. In December 2005, holders of bonds or notes issued by Argentina attached more than US$ 100 million of BCRA's reserves in its account at the Federal Reserve Bank of New York. In January 2006, S&C successfully moved to vacate the attachment. The Second Circuit affirmed, holding that BCRA is immune from attachment and legally separate from the Republic of Argentina. The Supreme Court denied certiorari on October 1, 2007.
- 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 four years. In the last year, as part of its long-term litigation strategy, Barclays achieved a successful result in that litigation, obtaining a reversal of the district court's class certification order by the U.S. Court of Appeals for the Fifth Circuit that, barring reversal by the Supreme Court, rejects class treatment of the securities fraud claims and casts doubt on their merit as pled.
- S&C obtained important victories for clients Diageo plc and Diageo North America, Inc. ("Diageo") in the District of Columbia Court of Appeals, the United States Court of Appeals for the Sixth Circuit, the Colorado Court of Appeals and the Wisconsin Court of Appeals when these courts affirmed the dismissals of several nearly identical purported class action complaints filed against virtually the entire alcohol beverage industry, seeking to hold the industry liable for billions of dollars in "family funds" spent by people under the legal drinking age who were lured into purchasing alcohol beverage products by the defendants' advertisements. S&C and Diageo were key members of the industry joint defense group, integrally involved in both developing the successful litigation strategy and drafting the court papers. After ten trial and appellate courts uniformly rejected plaintiffs' legal theories, plaintiffs agreed to terminate with prejudice all remaining actions and appeals, in exchange for defendants' agreement to withdraw their application for attorneys' fees in Colorado state court (where a dismissal with prejudice had been affirmed on appeal) and to forgo any other applications for costs or attorneys' fees. This agreement ended four years of litigation around the country with no payments to plaintiffs or their counsel and no concessions concerning defendants' advertising practices.
- In one of the most complex and long-running corporate and securities litigation matters ever, In re Initial Public Offering Securities Litigation, S&C achieved a landmark ruling in the U.S. Court of Appeals for the Second Circuit, reversing the district court's grant of class certification in the IPO "dot-com" securities litigation on behalf of client Goldman Sachs and as liaison counsel to 55 investment banks that were named as defendants. The decision provided important clarifications to the requirements for obtaining class action status, and is expected to be of significance in defending against putative class actions in securities, employment and other complex cases.
- In another precedent-setting Delaware case, S&C led the successful defense of a purported class action brought against JPMorgan Chase & Co. ("JPMC") and current and former members of its Board of Directors who approved the company's 2004 merger with BankOne to create the second largest financial institution in the U.S. S&C secured a dismissal of the complaint in the Delaware Court of Chancery on the ground that the claims were derivative in nature and, in March 2006, won an appellate decision from the Delaware Supreme Court that affirmed the lower court's dismissal and set an important precedent regarding the standards for obtaining damages under Delaware corporate law.
- S&C has continued to achieve 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. Recent highlights include the favorable ruling from the U.S. Court of Appeals for the Fourth Circuit in February 2006 in Deiter v. Microsoft Corp., whereby potential exposure amounting to billions of dollars was eliminated; and another success in April 2006 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 US$ 10 billion. On December 1, 2006, the Fourth Circuit heard argument on an appeal by Novell from dismissal of claims relating to the WordPerfect and QuattroPro applications that Novell owned for a brief period in the 1990s.
- Since 2004, S&C has achieved repeated victories on behalf of clients Philips Electronics North America Corp. and U.S. Philips Corp. ("Philips") in patent infringement lawsuits involving Philips' patent for a universal remote control. Significant wins include a jury trial awarding Philips damages of US$ 1 for each of the nearly 5.8 million remote controls sold, and a subsequent district court decision upholding the award and granting Philips nearly US$ 3 million in attorneys' fees and expenses. In that decision, the district court noted, among other things, that S&C has a "well-earned national reputation in complex litigation." In April 2006, S&C prevailed in an appeal of the trial result in the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit affirmed the jury's award to Philips and the district court's denial of motions for judgment as a matter of law in all respects.
Practice Contacts
Brendan P. Cullen
Palo Alto
P +1-650-461-5650
F +1-650-461-5700
[email protected]
Richard J. Urowsky
New York
P +1-212-558-3546
F +1-212-558-3588
[email protected]
