Appellate and Constitutional Law

Leaders

Thomas G. Hungar Washington, D.C.
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Caitlin J. Halligan New York
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Overview

The Appellate and Constitutional Law Practice Group's lawyers participate in appeals in all 13 federal courts of appeals and state appellate courts throughout the United States and have presented arguments in front of the Supreme Court of the United States more than 100 times.  The group has broad experience in complex appellate litigation at all levels of the U.S. federal and state court systems. 

In addition to traditional appellate litigation activities, the Appellate and Constitutional Law group provides a wide range of services on constitutional and related issues that include:

  • Formulating and briefing new legal arguments in the trial courts to ensure that legal arguments are developed and preserved for appeal 
  • Developing and advancing constitutional and policy arguments on proposed legislation and regulations 
  • Managing complex litigation
  • Developing novel or complex legal theories, sometimes long before the suit is filed 
  • Advising on possible constitutional challenges to statutes and the effects of regulations on proposed transactions or business plans
  • Analyzing proposed legislation and regulations from legal and policy perspectives, testifying before the U.S. Congress and state legislatures, and engaging in other forms of legislative and public policy advocacy
  • Counseling government entities, allowing them to anticipate legal challenges and to avoid needless litigation   

In recognition of its achievements, The American Lawyer named Gibson Dunn its 2016 Litigation Department of the Year, our firm's unprecedented third win in this biennial competition since 2010.  Dubbing the firm's litigators "The Game Changers" in 2010, The American Lawyer in 2012 declared that we possess "The Complete Game" and took particular note of our "revered Supreme Court practice" and "superb" appellate lawyers.  Gibson Dunn received Finalist honors in 2014.  Recognized by additional top legal publications including Chambers and The National Law Journal, we are proud of our reputation as aggressive, creative appellate lawyers and constitutional law experts. 

The Appellate and Constitutional Law group has been involved in matters that cover a wide array of constitutional, statutory, regulatory and common-law issues.  Our experience and expertise extend beyond the courts in the U.S. jurisdictions where we maintain offices — California, Colorado, New York, Texas and Washington, D.C. — to include many others.

The Appellate and Constitutional Law group's team of lawyers has a winning track record for grants of certiorari petitions, exceeding by far the Supreme Court's average grant rate.  Our partners include the former Solicitor General of the United States Theodore B. Olson, former Deputy Solicitor General Thomas G. Hungar and former Assistant to the Solicitor General Miguel Estrada.  The group also includes several former Supreme Court law clerks.   

Our strong, high-profile and successful presence before the Court includes appearances on behalf of clients that have included major U.S. corporations, U.S. states and presidential candidates.  Our group aims to win each case, but we also seek to address the root causes of your legal difficulties and, if possible, improve the legal, social and policy environments in which your rights will be decided.

Experience and Recent Representations

  • Resolved groundbreaking, multibillion-dollar litigation by NML Capital, Ltd. (an affiliate of Elliott Management Corporation) against the Republic of Argentina when Argentina paid NML more than $2.4 billion to satisfy NML's claims on the country's defaulted bonds.  This settlement marked the conclusion of what the Financial Times called the "sovereign debt trial of the century" and ended 13 years of litigation following Argentina's default in 2001 on more than $80 billion in external debt.  While most of Argentina's creditors accepted new bonds, worth much less, in exchange for the repudiated bond obligations, NML chose to fight.  After securing judgments, attachments and injunctions against Argentina, the tide turned with two decisive U.S. Supreme Court victories won for NML by Gibson Dunn.  Still unwilling to comply, Argentina continued to resist – and suffer the consequences – until the Republic's new president initiated negotiations with creditors and the settlement agreement was reached.
  • For CLS Bank, which settles over $5 trillion in foreign currency transactions daily, we obtained unanimous Supreme Court affirmance that ended a long-running patent infringement suit brought by Alice Corporation.  The Court affirmed an en banc Federal Circuit ruling, obtained by Gibson Dunn upon entering the case, that Alice's claims were patent-ineligible as the patents were drawn to the abstract idea of intermediated settlement. 
  • On behalf of Senate Republican Leader Mitch McConnell and 44 other U.S. Senators we persuaded the Supreme Court to unanimously affirm a landmark separation-of-powers decision from the D.C. Circuit that held unconstitutional three 2012 "recess" appointments to the National Labor Relations Board made by President Obama.  Gibson Dunn filed an amicus brief at the certiorari and merits stages and presented oral argument by special leave of the Court.  Seeking to fill three empty NLRB seats, the President had invoked the U.S. Constitution's Recess Appointments Clause to make the appointments during a three-day adjournment between Senate meetings in early 2012, after the second session of the 112th Congress had begun.  The Court unanimously held the appointments invalid. 
  • For the Town of Greece, New York we secured a landmark victory when the Supreme Court reversed the Second Circuit and upheld the Town's practice of opening its meetings with public prayer.  Agreeing with arguments advanced by Gibson Dunn on behalf of the Town, the Court concluded that legislative prayer "has long been understood as compatible with the Establishment Clause."  Determining that the Town's prayer practice fit within a tradition long followed by Congress and the state legislatures, the Court rejected respondents' argument that such prayers must be nonsectarian or unaligned with any particular religious tradition. 
  • Obtained a unanimous decision in the Supreme Court for Daimler AG, which had been sued in California by Argentinian plaintiffs for alleged human rights violations that occurred more than three decades ago in Argentina.  Agreeing with arguments advanced by Gibson Dunn on behalf of Daimler, the Court reversed the Ninth Circuit and held that Daimler was not subject to general personal jurisdiction in California notwithstanding the substantial business that its subsidiary Mercedes-Benz USA conducted in the State.
  • Won historic marriage equality victory before the Supreme Court, whose decision on June 26, 2013, left intact the district court's broad injunction against the enforcement of California's Proposition 8, an amendment to the California Constitution restricting marriage in the state to between one man and one woman. 
  • Obtained a victory for a media company when the Supreme Court reversed an order certifying a class of more than two million of its current and former subscribers, who alleged anti-competitive conduct on the company's part but failed to establish that damages could be calculated on a classwide basis.
  • Secured a victory for a large insurance company when the Supreme Court unanimously held that a putative class representative may not evade federal jurisdiction by attempting to stipulate that the class will not seek to recover more than $5 million.  The Court held that plaintiff cannot bind absent members of a proposed class before the class is certified, and therefore cannot unilaterally limit the claims of the absent class members.
  • Won a landmark victory for the world's largest retailer when the Supreme Court unanimously reversed class certification of the biggest employment discrimination class in history.
  • Obtained victory for a mutual fund in a decision in which the Court concluded that the only entity that can be held liable in a private securities fraud lawsuit for misstatements in a prospectus is the entity issuing the prospectus — in this case a mutual fund — and not the asset management fund that was advising it. 
  • Received a landmark 5-4 decision holding that portions of the McCain-Feingold campaign finance law (and other U.S. federal laws banning corporate and union expenditures on political speech) violate the First Amendment to the U.S. Constitution. 
  • Won a unanimous decision in which the Supreme Court narrowed the scope of liability under the False Claims Act by adopting a restrictive interpretation of the statute's intent requirement.  
  • Secured a victory before the en banc Sixth Circuit for Ford Motor Co. in a disability-discrimination suit brought by the Equal Employment Opportunity Commission.  The en banc court rejected a claim that the Americans with Disabilities Act entitled an employee at a key juncture in Ford's supply chain to telecommute on a frequent but unpredictable basis.  
  • Secured affirmance in the Second Circuit of the district court's dismissal of Paul Ceglia's fraudulent lawsuit against Facebook, Inc. and Mark Zuckerberg, in which Ceglia claimed he was entitled to an 84% ownership stake in Facebook.  The court held that the "contract" relied on by Ceglia was a forgery and that Ceglia had spoliated evidence during the course of the litigation.
  • Won an historic ruling in Vergara v. California striking down five provisions of the California Education Code relating to the tenure and dismissal of public school teachers as unconstitutional under the equal protection provisions of the California Constitution.  The New York Times Editorial Board described the ruling as a landmark decision that "opens a new chapter in the equal education struggle," and U.S. Secretary of Education Arne Duncan called the decision a "mandate to fix the[] problems" that beset California's public schools. 
  • Secured reversal from the Third Circuit on behalf of a leading retailer regarding the district court's interpretation and application of SEC rules governing the exclusion from a public company's annual proxy statement of shareholder proposals that interfere with the company's ordinary business operations.
  • Won reversal from the Federal Circuit of an injunction and a contempt sanction against client Lawson Software Inc. (now Infor) for alleged patent infringement involving e-procurement software, overturning a district court order requiring Lawson to disgorge years' worth of profits and face onerous, prospective daily fines.
  • Obtained a unanimous decision for Covidien from the Delaware Supreme Court, which ordered a new trial and reversed the jury's $250 million breach of contract verdict against a Covidien subsidiary.
  • Won a key victory in the Fifth Circuit on behalf of BP Exploration & Production Inc. and BP America Production Company, in which the Circuit reversed the district court's interpretation of the settlement agreement in one of the largest and most complex class actions in U. S. history, involving plaintiffs who claimed billions of dollars in lost profits as a result of the Deepwater Horizon oil spill. 
  • Secured a reversal from the California Supreme Court in which the Court ruled that the restrictions on recording credit card information under the Song-Beverly Credit Card Act did not apply to online transactions, resulting in the dismissal of a class action against the client, a national e-retailer. 
  • Achieved a complete victory from the Fourth Circuit for Advanced Nutrients in a trade secrets and breach of contract case by relying on plaintiffs' failure to elicit expert testimony to prove the uniqueness of the microbial formula at issue. 
  • Obtained a victory on behalf of the directors of Allergan, Inc. in the Delaware Supreme Court in a derivative lawsuit brought by shareholders who had filed substantively identical actions against the directors in both California and Delaware.