Our appellate strategy comes from understanding our clients’ business and priorities as well as the legal and procedural ramifications of trial court orders. We have developed a Navigator Program that provides a layer of support at all stages of litigation to work with you to identify strategic steps, to support pretrial and trial teams and to serve as appellate counsel.
We understand that appellate issues arise at many points–often unexpectedly–during the life cycle of cases and we keep current with complex underlying issues to shape questions, arguments and the record for possible appeals.
Our team assists with the preparation of dispositive motions; advises on when and how to preserve issues and the record (both pretrial and at trial); and helps determine whether an interlocutory or collateral appeal is warranted.
Waiting until after trial to identify an appellate strategy can be risky because decisions made at trial can limit the arguments that may be made on appeal. It is difficult to evaluate the choices presented in the trial court without a clear and up-to-date understanding of the legal landscape in each appellate court.
Taken together, our powerful combination of trial and appellate skills enables our appellate attorneys to counsel clients on whether, when, and how to take an appeal.
Our appellate practice assists clients in all types of litigation, and we often work across practices, counseling clients or advocating for industry or other perspectives through amicus briefs.
The following are highlights of recent appeals:
In re: Blood Reagents Antitrust Litigation (3rd Cir.)
We represent the defendant in this antitrust class action alleging price fixing with respect to blood reagents, which are products used to type and screen blood. On April 8, 2015, after granting a Rule 23(f) petition by our client for an interlocutory appeal, the Third Circuit Court of Appeals vacated the district court’s class certification order and remanded for further proceedings. In its opinion, the Third Circuit explicitly held for the first time that a Daubert standard of admissibility applies to expert testimony at the class certification stage.
Caronia v. United States (2nd Cir.)
Following his acquittal, the defendant in the landmark United States v. Caronia decision, the first case holding that the FDA’s practice of prosecuting pharmaceutical companies and their employees for engaging in truthful, non-misleading off-label promotion violated the First Amendment, brought a malicious prosecution action against the government and his employer. We persuaded the U.S. District Court for the Eastern District of New York that the employer’s involvement in the prosecution could not have been malicious given the uncertainty in the law at that time, and persuaded the Second Circuit to affirm the dismissal on appeal on the same grounds.
Crosby Valve, LLC v. Department of Insurance (Penn. Commonwealth Court)
In January 2016, the Pennsylvania Commonwealth Court upheld the decision of the Pennsylvania Department of Insurance to deny intervention to objecting policyholders, and to maintain the confidentiality of documents provided to the Department. Because of its decision, the court did not need to review the merits of the underlying transaction.
Republic Services v. Mercer County Improvement Authority (N.J. Appellate Division)
We served as sole trial and appellate counsel to Republic Services of New Jersey in Republic Services of New Jersey v. Mercer County Improvement Authority. We obtained a key appellate victory in late 2014 when the litigation arising out of Mercer County’s rejection of our client’s bid for a $100 million solid waste service contract was overturned and awarded to our client. Mercer County’s action to comply with the Appellate Division ruling was challenged in court in 2015, and there was a critical ruling by the trial court in the remand proceeding as to the length of the contract to be awarded to Republic. In addition, in July 2015, after the New Jersey Supreme Court agreed to review the Appellate Court’s decision, it then reversed course and dismissed the appeal.
Recent Amicus Briefs
United States Supreme Court
- American Bar Association, filed in support of certiorari in Boehringer Ingelheim Pharmaceuticals, Inc. v. FTC, 15-560, December 2015 (work product protection)
- Rutherford Institute, filed on the merits in Friedrichs v. California Teachers Assn, 14-915, September 2015 (First Amendment opt-in)
- National Federation of Independent Business Small Business Legal Center, filed on the merits in Lawson v. FMR, LLC, 12-3, October 2014 (Sarbanes-Oxley retaliation statutory construction)
- Rutherford Institute, filed on the merits in Conestoga Wood Specialties Corp. v. Sebelius, 13-356, January 2014 (corporate law and corporate governance)
Federal Courts of Appeals
- Pharmaceutical Research and Manufacturers of America, filed in In re: Fosamax (Alendronate Sodium) Products Liability Litigation, 14-1900, et al. (Court of Appeals for the Third Circuit), November 2015 (conflict preemption and Order to Show Cause procedures)
- America’s Health Insurance Plans, filed in New York State Psychiatric Ass’n, Inc. v. United Health Group, 14-0020-CV (Court of Appeals for the Second Circuit), August 2014 (ERISA statutory construction)
California Supreme Court
- Product Liability Advisory Council, filed in Mares v. Chrysler Group LLC, No. S229947, November 2015 (application of consumer expectations test for determining design defect liability in automotive crashworthiness product liability litigation)
- Product Liability Advisory Council, filed in Cooper v. Takeda Pharmaceuticals America, Inc., No. S229441, October 2015 (admissibility of scientific expert testimony)
- Product Liability Advisory Council, filed in Nguyen v. Western Digital Corp., No. S222377, December 2014 (interpretation and application of statute of limitations for birth defect injuries arising from alleged toxic chemical exposures)
- Product Liability Advisory Council, filed in Romine v. Johnson Controls, Inc., No. S218179, May 2014 (application of consumer expectations test for determining design defect liability in automotive crashworthiness product liability litigation)
New Jersey Supreme Court
- New Jersey Hospital Ass’n, filed in C.A. v. Bentolila, 99 A.3d 317 (2014) (privilege applicable to self-critical analyses developed under NJ’s Patient Safety Act)
New Jersey Appellate Division
- Amicus filing was made in Warren v. Muenzen. Court granted motion and the firm is now amicus. Case will be argued in the fall; court reserved on question as to whether or not we can participate in oral argument.
Pennsylvania Supreme Court
- Truck Renting and Leasing Association and the Industry Council for Vehicle Renting and Leasing, filed in Grimes v. Enterprise Leasing Co., 4 MAP 2014 (March 2014) (Justifiable reliance for private plaintiffs under Pennsylvania’s UTPCPL)
Waiting until after trial to identify appellate questions can be risky, not only because decisions made at trial can limit the arguments that may be made on appeal, but also because it is difficult to evaluate the choices presented in the trial court without a clear and up-to-date understanding of the legal undercurrents in the applicable appellate court.
Our Navigator Team provides a layer of strategic support at all stages of litigation to optimize your chances of ultimate success. We provide that support in a number of ways:
Helping You Identify Strategic Steps
Litigation strategy always works hand in hand with business goals. The Navigator Team provides an external perspective that can help advance your overall interests through development of a focused, strategic approach to identifying and pursuing changes in the law that will facilitate those business goals.
Supporting Your Pretrial and Trial Teams
Even before trial begins, it is important to determine how to characterize the relief you seek and how to frame the arguments you make in order to preserve and set up arguments for appeal. The Navigator Team regularly supports counsel pretrial in drafting jury instructions, critical motions in limine, and summary judgment motions. It serves as a resource at trial, protecting the record and arguing trial motions. All of these permit the trial team to focus on preparing witnesses and on trial strategy. Also, when interlocutory review is available, the Team will be in position to seek it.
Serving as Appellate Counsel
The Navigator Team can prepare or assist with post-trial briefing in addition to the appeal, helping to assure a seamless transition from the trial court to the appellate court.
Providing Cost-Effective Solutions
The Navigator Team understands your need for predictability, and it seeks to meet that need by offering fixed price or monthly consultation rates, as well as hourly rates for pretrial and trial support that are tailored to the role it fulfills.
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