The preeminence of Gibson Dunn's Appellate and Constitutional Law Practice Group is underscored by its recent placement on the National Law Journal's "2008 Appellate Hot List," a first-time survey of top appellate law practices.  The National Law Journal singled out our practice for a profile, noting that "Gibson, Dunn & Crutcher's appellate team is on a streak" having "won eight of the 11 U.S. Supreme Court cases it has argued during the past three terms" and that "the firm's 31 appellate specialists represent an embarrassment of riches."

U.S. Supreme Court Litigation

Gibson Dunn has a strong and high-profile presence in the Supreme Court of the United States, appearing numerous times in the past decade in a variety of cases on behalf of the nation's leading corporations, U.S. states (e.g., Kansas, New York), the President of the United States and others.  Three of our partners have served in the Office of Solicitor General of the United States, the office charged with responsibility for representing the United States before the Supreme Court.  Theodore B. Olson, the immediate past U.S. Solicitor General, rejoined the Firm in July 2004 as a partner in our Washington, D.C. office.  New York Times columnist William Safire has called Mr. Olson "this generation's most persuasive advocate" (New York Times, November 8, 2004) and "the most effective constitutional lawyer in the nation" (New York Times, March 24, 2004).  Mr. Olson serves as Co-Chair of the Appellate and Constitutional Law Practice Group, along with Miguel Estrada in Washington, D.C., Theodore J. Boutrous, Jr., in Los Angeles, and Daniel M. Kolkey in San Francisco.

Some of our recent representations in the United States Supreme Court include:

• Winning a unanimous Supreme Court victory on behalf of the New York State Board of Elections in which the Court upheld the constitutionality of the New York State judicial electoral process.
• Winning an 8-1 Supreme Court victory on behalf of Medtronic, Inc. in which the Court held that federal law preempts products liability claims challenging the design and labeling of medical devices that the federal Food and Drug Administration (FDA) has found to be safe and effective.
• Obtaining a Supreme Court reversal of a Federal Circuit decision against a major software maker.  In this significant spring 2007 patent law decision, the Court held that U.S. patent law does not extend to the overseas production of allegedly infringing software duplicated by foreign manufacturers using a U.S.-supplied master disk.
• Winning a landmark antitrust victory in summer 2007 in which the Supreme Court overruled the nearly century-old  minimum-resale-price per se violation rule of the Dr. Miles case.
• Winning a unanimous Supreme Court ruling in spring 2006 on behalf of a major automaker, in which the Court rejected a challenge by Ohio taxpayers to a state tax credit that rewards companies that locate plants within the state.  The Court held that the state taxpayers lacked Article III standing to challenge the investment tax credit under the Constitution's Dormant Commerce Clause.
• Successfully serving as lead counsel for candidate George W. Bush in federal court litigation stemming from the disputed ballot counting in Florida during the 2000 presidential election.  In less than three weeks, a team of Gibson Dunn appellate lawyers led by Mr. Olson successfully briefed and argued two cases before the Supreme Court, Bush v. Palm Beach County Canvassing Board and Bush v. Gore, both of which raised novel and complex issues of federal constitutional and statutory law.
• Convincing the Supreme Court to dismiss a closely watched patent case on the ground that certiorari had been improvidently granted, thereby upholding the lower-court decisions awarding several millions of dollars of damages in favor of our clients.
• Persuading the Supreme Court in spring 2007 to grant a major automaker's certiorari petition and vacate a $55 million punitive damage award against it on due process grounds, and to remand this products liability case to the California courts for reconsideration in light of the Court's recent decision in Philip Morris USA v. Williams; we obtained earlier reductions of nearly $260 million off the original verdict.
• Obtaining a Supreme Court victory in December 2005 on behalf of the State of Kansas in which the Court reversed a decision of the Tenth Circuit that placed significant constraints on States' taxation powers. The Court ruled that the State of Kansas could impose a motor fuel tax on distributors who later resell their fuel to an Indian tribe that operates a gas station and casino on its Kansas reservation.

Appellate and Constitutional Law Nationwide

Our lawyers have participated in appeals in all thirteen federal courts of appeals and state appellate courts throughout the country in matters involving a wide array of constitutional, statutory, regulatory, and common law issues.  Gibson Dunn has a truly national practice before state appellate courts.  We have significant experience not only in the courts of the U.S. jurisdictions in which the Firm maintains offices (California, New York, Washington, D.C., Texas and Colorado), but in many other jurisdictions across the country. In addition to appellate matters, we have substantial experience in litigating constitutional issues in state and federal trial courts throughout the nation.

Some of our significant appellate and constitutional law representations include:

• Obtaining a precedent-setting decision regarding the Americans with Disabilities Act (ADA) from the en banc U.S. Court of Appeals for the Ninth Circuit.  The en banc panel overruled an earlier Ninth Circuit decision that had placed a higher burden on employers seeking to use safety-based qualification standards than intended by Congress.
• Persuading the U.S. Court of Appeals for the First Circuit to reverse and vacate a class certification order issued by a lower court in a multi-billion dollar antitrust class action lawsuit against several major motor vehicle manufacturers.
• Winning a landmark dismissal of a multi-billion dollar "global warming" lawsuit brought by the California Attorney General against six major automakers.  In September 2007 the U.S. District Court for the Northern District of California granted the automakers' motion to dismiss the lawsuit on political question grounds.
• Winning a major victory in August 2007 for the insurance industry in litigation over insurance coverage related to Hurricane Katrina.  The U.S. Court of Appeals for the Fifth Circuit held that homeowners' insurance policies with exclusions for "flood" did not provide coverage for water damage that occurred when the City of New Orleans was inundated with water following Hurricane Katrina.  The Fifth Circuit agreed with a series of arguments that Gibson Dunn advanced on behalf of our insurance company client, and a dozen other major insurance companies, reversing a lower court's decision and concluding that "the flood exclusions in the plaintiffs' policies unambiguously preclude their recovery."
• Convincing the U.S. Court of Appeals for the Second Circuit to strike down the Federal Communications Commission's "indecency policy."  The result was a major victory in spring 2007 for broadcast companies, including our major broadcast company client.  The Second Circuit relied on Gibson Dunn's brief for our client to reject the Commission's justification for the ban on so-called "fleeting expletives"--that is, the isolated use of common four-letter obscenities--and The New York Times singled out Gibson Dunn's efforts for special mention.
• Obtaining a significant pro bono victory in March 2007 before the en banc U.S. Court of Appeals for the Federal Circuit on behalf of a disabled veteran concerning equitable tolling under the Uniformed Services Employment and Reemployment Rights Act.
• Convincing the U.S. Court of Appeals for the Federal Circuit in June 2005 to uphold the dismissal of two patent infringement claims against our client, a university-affiliated medical company.
• Persuading the U.S. Court of Appeals for the Federal Circuit in January 2006 to affirm the grant of summary judgment to our client, a major communications provider, against a patent holder who claimed that our client's web switches infringed on its patent on a method for "load balancing" at Internet websites.
• Prevailing in the U.S. Court of Appeals for the Fourth Circuit in November 2006 on a lawsuit to enjoin Maryland's "Fair Share Health Care Fund Act," which required organizations with more than 10,000 employees to spend at least 8 percent of their payroll on health benefits or to put the money directly into the state’s health program for the poor.  The state had appealed a district court's ruling that struck down the law based on ERISA preemption.
• Persuading the U.S. Court of Appeals for the Ninth Circuit in September 2006 to reverse a lower court's $52.5 million judgment that certain categories of insurance claims adjusters were subject to federal overtime laws.
• Persuading the California Supreme Court in June 2006 that the City and County of San Francisco could not sue our major financial-services client for violating the California False Claims Act, because cities and other public entities do not qualify as "persons" under the False Claims Act.
• Successfully defending before the California Supreme Court Proposition 77, a comprehensive electoral redistricting measure, and securing a ruling on behalf of the proponents of Proposition 77 that will guide both the timing and nature of future legal challenges to initiative measures in California.
• Convincing the California Supreme Court in June 2005 to reject the "aggregate profit disgorgement approach" to punitive damages, and thereby hold that a $10 million punitive damage award against a major automaker was excessive and unconstitutional in a "Lemon Law" case.
• Persuading the Arkansas Supreme Court to recognize that corporate officers and directors have a fiduciary duty to disclose their own wrongdoing against the company before entering into lucrative retirement agreements with the company.
• Persuading state and federal courts to overturn some of the largest jury verdicts in history, in a diverse array of areas, including product liability, defamation and sexual harassment litigation.

Legal and Strategic Counseling

In addition to our traditional appellate litigation activities, the Appellate and Constitutional Law Practice Group provides strategic counseling and advice regarding constitutional and other issues arising outside the appellate context.  We brief and argue constitutional and other complex legal issues in trial courts and assist in ensuring that legal arguments are preserved for appeal.  We also develop and advance constitutional and policy arguments concerning proposed legislation and regulations.  For example, we have been leading national advocates of civil justice reform, testifying before Congress and state legislatures and writing and speaking out about costly, capricious, and unpredictable aspects of America's civil justice systems.

Members of our Practice Group develop and manage complex litigation plans involving constitutional issues.  For example, New York's seven investor-owned electric utility companies retained us to challenge the constitutionality of a state administrative plan to restructure the electric industry.  We were also engaged to assist in the presentation of constitutional challenges to a state administrative effort to sidetrack a major merger in the telecommunications industry.  And we were retained to assist a consortium of automobile manufacturers in developing and managing a constitutional challenge to an Arizona statute that limited the manufacturers' ability to market and sell vehicle-related products and services to consumers.

We assist clients in developing novel or complex legal theories, sometimes long before suit is filed.  For example, we often are asked to advise clients as to whether a constitutional challenge can be mounted against governmental statutes or whether regulations stand as an obstacle to a proposed transaction or business plan.  Working closely with the Firm's Public Policy Practice Group, we also analyze proposed legislation and regulations from both legal and policy perspectives, testify before Congress and state legislatures, and engage in other forms of legislative and public policy advocacy.

We also provide strategic counseling to government entities on a wide array of legal issues, allowing them to anticipate legal challenges and to avoid needless litigation.  We have served as advisors to several governors in California and Florida and served as Governor Arnold Schwarzenegger's lead negotiator for tribal-state compacts under the Indian Gaming Regulatory Act.

Shaping the Litigation Environment

We are known for being aggressive, creative appellate lawyers and constitutional law experts.  Not only do we try to win each case, but we also seek to address the root causes of our clients' legal difficulties and, if possible, improve the legal, social, and policy environments in which our clients' rights will be decided.

When a client confronts a recurring or otherwise significant issue on appeal, it very often is not enough simply to win the case at hand.  Some issues are so important, and implicate so many different legal, social, and policy concerns, that they deserve special attention.  We specialize in assisting clients in developing and implementing a comprehensive approach to such problems, and ensuring, to the greatest extent possible and appropriate, that our clients' positions are fully and properly understood by the public, the media, and all relevant decision makers. 

Further Information

Gibson, Dunn & Crutcher's Appellate and Constitutional Law Practice Group is committed to providing exemplary legal services for all of our clients.  For further information, please contact the co-chairs of the practice group:  Theodore B. Olson or  Miguel A. Estrada in our Washington, D.C. office at (202) 955-8500, Theodore J. Boutrous, Jr., in our Los Angeles, California office at (213) 229-7804, or Daniel M. Kolkey in our San Francisco, California office at (415) 393-8240.