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Appellate and Constitutional Law

Appellate and Constitutional Law

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The Appellate and Constitutional Law Practice Group of Gibson, Dunn & Crutcher is one of the leading U.S. appellate practices, with broad experience in complex appellate litigation at all levels of the state and federal court systems.  Practice co-chair Miguel Estrada was named a 2014 Litigator of the Year winner by The American Lawyer, which also awarded its 2014 Litigation Department of the Year Finalist honors to Gibson Dunn.  Practice co-chair Ted Olson was a finalist in the publication’s inaugural 2012 Litigator of the Year competition.  These 2014 awards follow our unprecedented back-to-back wins as 2010 and 2012 Litigation Department of the Year.  In granting the 2012 award The American Lawyer took particular note of our “revered Supreme Court practice” and “superb” appellate lawyers; in 2010 the publication dubbed our litigators “The Game Changers.”

Accolades  

  • Law360 named Gibson Dunn a 2013 Practice Group of the Year in the Appellate category.  Practice Groups of the Year were selected for the significance, size, complexity and number of the matters worked on in 2013.
  • The National Law Journal named Gibson Dunn to its 2013 Appellate Hot List, which recognized 20 firms “doing killer appellate work” in the country’s appellate courts.  The firm was recognized for its work challenging the constitutionality of the California proposition banning gay marriage and for its success before the U.S. Supreme Court on behalf of clients Standard Fire Insurance Co. and Comcast Corp.
  • Chambers USA: America’s Leading Lawyers for Business 2013 ranked Gibson Dunn in Tier 1 in the category of Appellate Law.
  • US Legal 500 2013 ranked Gibson Dunn in Tier 1 in the categories of Litigation: Appellate and Litigation: Supreme Court.

U.S. Supreme Court Litigation

Gibson Dunn has a strong and high-profile presence before 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, presidential candidates, and others.  Gibson Dunn has had more than 100 Supreme Court arguments among the firm’s active lawyers.  The firm’s recent track record speaks for itself.  In the 2009 and 2010 terms, four different Gibson Dunn partners won five major cases.  Moreover, while the grant rate for certiorari petitions is below 1%, Gibson Dunn has persuaded the Court to grant its certiorari petitions more than 30% of the time in the last five years.

Four of our partners have served in the Office of the Solicitor General of the United States, the office charged with representing the United States before the Supreme Court.  Theodore B. Olson was the U.S. Solicitor General from 2001 to 2004.  Olson rejoined the Firm in July 2004 as a partner in our Washington, D.C. office.  New York Times columnist William Safire 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).  In addition, Thomas G. Hungar returned to the Firm after serving as Deputy Solicitor General.  Mr. Olson and Mr. Hungar serve as co-chairs of the Appellate and Constitutional Law Practice Group, along with Miguel A. 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 U.S. Supreme Court include:

  • Obtaining 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.
  • Obtaining victory for a mutual fund in a decision where 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. 
  • Obtaining a landmark 5-4 decision holding that portions of the McCain-Feingold campaign finance law and other federal laws banning corporate and union expenditures on political speech violate the First Amendment. 
  • Obtaining a landmark ruling that the Constitution's Due Process Clause requires a state judge to recuse himself where a litigant's financial support for the judge's election campaign creates a probability that the judge is biased.    
  • Winning a case of vital importance to the nation's mining industry by persuading the Court to reverse a Ninth Circuit decision that would have shut down our client's gold mining operations in Alaska by requiring permits from the EPA after the company already had received a permit from the Army Corps of Engineers. 
  • Obtaining a significant Supreme Court ruling for the Governor of Rhode Island that preserves Rhode Island’s ability to exercise sovereignty over land that the U.S. Department of the Interior sought to take into trust on behalf of an Indian tribe.
  • Winning 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.  
  • 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 elections 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 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 2007 in which the Supreme Court overruled the nearly century-old per se rule against resale price maintenance.
  • Winning a unanimous Supreme Court ruling in 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 million dollars in damages to our clients.
  • Persuading the Supreme Court in 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 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 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 that 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 13 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. 

Some of our significant appellate and constitutional law representations include:

  • Winning an affirmance in the Proposition 8 litigation, the first federal constitutional challenge to California’s ban on gay marriage.  The U.S. Court of Appeals for the Ninth Circuit affirmed a trial court’s decision, holding that Proposition 8 is unconstitutional under the Equal Protection and Due Process clauses of the Constitution.
  • Winning an affirmance from the dismissal of a putative class action against a computer manufacturer relating to purported defects in their computers.  The U.S Court of Appeals for the Ninth Circuit held that plaintiffs’ allegations were conclusory and that a manufacturer has no duty to disclose absent a known, unreasonable safety risk.
  • Successfully challenging the SEC’s proxy access rule, which allowed shareholders owning 3 percent or more of a company’s shares to use the company’s proxy materials to put forward candidates for the board of directors.  The D.C. Circuit unanimously rejected the Commission’s rule.
  • Convincing the U.S. Court of Appeals for the Third Circuit to reverse a district court order certifying the largest class in the history of the Americans with Disabilities Act.
  • Winning a challenge to SEC rulemaking by convincing the D.C. Circuit to reject a proposed rule regulating the $100 billion Fixed Indexed Annuities industry.  The D.C. Circuit voided the proposed rule, rejecting the Commission’s flawed analysis as arbitrary and capricious.
  • Prevailing in a securities class action case, where the defendant faced potential liability of several billion dollars.  In a published, unanimous opinion, the U.S. Court of Appeals for the Tenth Circuit clarified a plaintiff's loss-causation burden under federal securities laws.  The opinion is significant not only for securities defendants, but also for class-action and other defendants, particularly in cases in which expert testimony figures prominently. 
  • Winning reversal and complete dismissal by the Texas Supreme Court in a class action on behalf of an auto manufacturer where plaintiffs alleged certain vehicles contained defective seatbelts and demanded as much as $8 billion despite lack of injury.   
  • Securing an appellate victory resulting in dismissal of all claims against Warner Music Group Chairman and CEO Edgar Bronfman Jr.  The plaintiff claimed he had advised Mr. Bronfman on the acquisition of Warner Music Group and alleged damages totaling $100 million.  The court held that the plaintiff’s claims based on alleged oral agreements were barred by the New York Statute of Frauds.  
  • Obtaining dismissal of state law claims against FINRA stemming from a broker examination where a computer error led to incorrect scores.  The D.C. Circuit held that Congress intended FINRA to have immunity when performing its regulatory duties and that state-law claims were preempted.
  • Winning a victory for a car rental company when the U.S. Court of Appeals for the Eleventh Circuit rejected a constitutional challenge to a federal statute that eliminates vicarious liability of car rental companies for torts committed by the drivers of the vehicles. 
  • Obtaining dismissal of a class action for Amazon.com before the U.S. Court of Appeals for the Ninth Circuit. The court dismissed for lack of standing, where the plaintiff sought treble damages on behalf of a class of consumers allegedly injured by an agreement between Amazon.com and Borders.com through which Amazon.com hosted the Borders.com website.  
  • Persuading the California Court of Appeal to vacate a $30 million jury verdict against a law firm where a former client alleged that the firm had committed malpractice by missing a statute of limitations.
  • Successfully litigating, on behalf of two intervenors, a major separation-of-powers appeal in which the D.C. Circuit upheld the constitutionality of a section of the Safe, Accountable, Flexible, Efficient Transportation Equity Act. 
  • Obtaining a precedent-setting decision regarding the Americans with Disabilities Act 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. In June 2009, the Attorney General withdrew the appeal and agreed to dismiss the lawsuit with prejudice.
  • 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."
  • 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 that 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 in August 2005 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 award against a major automaker was excessive and unconstitutional in a "Lemon Law" case.
  • Persuading the Arkansas Supreme Court in April 2007 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 multiple U.S. Courts of Appeals to grant interlocutory review under Federal Rule of Civil Procedure 23(f) of trial courts' certification of some of the largest class actions in U.S. history, often on the eve of trial.
  • 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 developed and 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 system.

Members of our Practice Group develop and manage complex litigation involving constitutional issues.  For example, in the U.S. Supreme Court, we secured a groundbreaking decision that portions of the McCain-Feingold campaign finance law violated the First Amendment.  We obtained another landmark victory when the Court held that the Due Process Clause requires a state judge to recuse himself where a litigant’s financial support for the judge’s election campaign creates a probability that the judge is biased.  In addition, Gibson Dunn currently represents the plaintiffs in Perry v. Schwarzenegger, the first federal case to consider whether gay men and lesbians are guaranteed the freedom to marry under the U.S. Constitution.  After a three-week trial, a federal district court in San Francisco held that California’s Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses because it fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.  The case is currently on appeal to the Ninth Circuit.

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: Theodore B. Olson, Miguel A. Estrada or Thomas G. Hungar 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.

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