Appellate advocacy demands three distinct skills: (i) thorough research focused on the types of issues of concern to appellate judges; (ii) the reformulation of issues through trenchant analysis and attentiveness to the rule being sought; and (iii) highly developed written and oral advocacy skills keyed to the unique conditions of the appellate or Supreme Court forum. The consistently successful use of these skills in high-profile, high-stakes cases is the trademark of Akin Gump Strauss Hauer & Feld LLP’s appellate practice. The appellate practice’s success is supported by the firm’s broad-gauged litigation practice, its global scope and the hand-in-glove cooperation among the firm’s practices. Consequently, clients with issues in disciplines as divergent as labor and employment, intellectual property and constitutional law are assured of receiving targeted and powerful representation.

We served as counsel of record or co-counsel in over 10 percent of the cases the Supreme Court heard in each of its last three terms. We argued three cases in the 2009 Term, and our lawyers briefed as co-counsel five additional cases that were heard during the 2009 Term.

Our Team

Akin Gump’s appellate practice is nationally recognized as comprising exceptionally experienced and respected figures in the courtroom. Prominent in the practice are a former federal appellate court judge, a former state appellate court judge and a former long-term assistant to the Solicitor General. This team of lawyers brings more than a half-century and hundreds of appeals’ worth of experience to bear on any case. The practice includes lawyers with years logged as clerks at almost every level of the judicial system, including the U.S. Supreme Court, state supreme courts, federal appellate circuit courts, federal District Courts and bankruptcy courts, as well as the U.S. Tax Court, the U.S. Court of International Trade and the U.S. Court of Federal Claims. As a result, every appeal we handle is fortified by first-hand knowledge both of what judges want and need to know to decide the case and how best to present that information, particularly when the judges know little about the area of law or industry in question.

Three of our appellate lawyers have been named as fellows of the American Academy of Appellate Lawyers. The National Law Journal named Akin Gump to its “Appellate Hot List” as one of the nation’s top appellate firms in 2008 and 2009, and The American Lawyer named Akin Gump one of the five finalist firms for Litigation Department of the Year in its January 2008 issue. The magazine cited Akin Gump’s “impressive list of wins against formidable adversaries,” its “daring and creativity” in winning at trial and its “political savvy” when politics and legal matters intersect.

Every term, the firm’s Supreme Court practice participates at both the petition and merits stages in the Supreme Court to obtain or resist Supreme Court review, to organize amicus curiae efforts, to file amicus briefs and to litigate cases through both briefing and oral argument.

What this means for our clients is a seamless continuum of litigation know-how that extends from collaborating with trial counsel on strategic and tactical matters to raise all applicable arguments and make appropriate records at the trial court level, through deploying our extensive and hands-on experience on appeal, to seeking or preventing Supreme Court review. The depth, breadth and quality of experience possessed by Akin Gump’s appellate practice is such that lawyers from around the country—including accomplished appellate lawyers—regularly consult our lawyers on complex, critical matters.

Representative Matters – Supreme Court

Akin Gump has or is representing parties in the following Supreme Court cases this Term—

• Match-E-Be-Nash-She-Wish Band of Pattawatomi Indians v. Patchak — Whether the Quiet Title Act bars a challenge to the federal government decision to take land into trust for the Gun Lake Tribe; whether the plaintiff has prudential standing.
• Filarsky v. Delia — Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a private lawyer rather than a government employee.
• Gonzalez v. Thaler — Whether state law is relevant to determining when the States’ direct review processes conclude, as the Seventh, Eighth, and Eleventh Circuits have held, or whether the Antiterrorism and Effective Death Penalty Act of 1996 dictates a single federally prescribed point in time when all state direct-review processes are deemed to have concluded, as the Fifth and Ninth Circuits have held, among other issues.
• National Federation of Independent Business v. Kathleen Sebelius, Secretary of Health & Human Services; Department of Health & Human Services. v. Florida; Florida v. Department of Health & Human Services — Amicus curiae brief submitted on behalf of America’s Health Insurance Plans addressing the severability of the individual mandate from the balance of the Patient Protection and Affordable Care Act.

Representative Matters – Federal Appellate

A sample of our recent, significant victories in federal appellate courts includes (Akin Gump client is noted by asterisk)—

• Viavente Taiwan, L.P. v. *United Parcel Service, Inc., 2010 WL 3195689 (11th Cir. Aug. 13, 2010).  Affirming orders declaring that plaintiff was contractually obligated to indemnify defendant for all duties, taxes, penalties, and fines assessed by Taiwan customs authority in connection with shipment of plaintiff’s products to Taiwan and granting summary judgment to defendant.
• American Dental Ass’n v. CIGNA & *Met Life Inc., 605 F.3d 1283 (11th Cir. 2010).  Affirming dismissal of putative nationwide civil RICO class action and holding that plaintiffs failed to plead with requisite specificity claim that insurers conspired to defraud dentists through use of computer programs that were alleged to improperly reduce payments to dentists.
• In re Nortel Networks, Inc. (*Official Committee of Unsecured Creditors), __ F.3d __, 2011 WL 6826412 (3d Cir. Dec. 29, 2011).  Affirming bankruptcy and district courts’ rulings in favor of debtors and official committee of unsecured creditors and holding that “police power” exception to automatic stay provision of Bankruptcy Code did not apply to pension plan funding proceedings in United Kingdom initiated by private parties to address private pecuniary interests.
• *Oceana, Inc. v. Locke, __ F.3d __, 2011 WL 2802989 (D.C. Cir. July 19, 2011).  Reversing district court and holding that federal agency’s method of assessing volume of fish that are inadvertently or unavoidably caught by fisheries in the northeastern United States violated the Magnuson-Stevenson Fishery Conservation and Management Act.
• Spectrum Stores, Inc. v. Citgo Petroleum Corp and *Oil Company Lukoil, et al., 632 F.3d 938 (5th Cir. 2011).  Affirming dismissal of consolidated antitrust class actions brought by U.S. gasoline retailers against private oil companies and oil companies owned by or affiliated with OPEC-member countries, and holding that suits were barred by the political question and act of state doctrines.
• Thomas v. *Metropolitan Life Insurance Co., 631 F.3d 1153 (10th Cir. 2011).  Affirming grant of summary judgment and holding that insurer did not owe fiduciary duties to plaintiffs and putative class under Investment Advisers Act in connection with sale of insurer’s variable life insurance policies because representative who made the sale was a broker-dealer exempt from the Act.
• United States ex rel. Jamison v. McKesson Corp and *GGNSC Holdings, L.L.C., 649 F.3d 322 (5th Cir. 2011).  Affirming dismissal of False Claims Act (“FCA”) suit arising from alleged Medicare fraud in the provision of nutritional products to nursing homes on grounds that qui tam relator’s suit was based on publicly available information, not on information for which the relator was the original source, as required by FCA.
• Howard v. *United Parcel Services, Inc., 2011 WL 5138719 (5th Cir. Oct. 31, 2011).  Affirming grant of summary judgment for employer on racial discrimination and hostile work environment claims; holding that employer had legitimate, nondiscriminatory reasons for demoting employee that were not pretextual, and that isolated incidents, most of which were not directed at employee personally, did not create a hostile work environment.
• *Roswell Capital Partners LLC v. Beshara, 2011 WL 3849613 (2d Cir. Sept. 1, 2011).  Affirming grant of summary judgment and holding that defendant’s conversion of debt into equity under third party’s promissory note terminated defendant’s security interest in collateral, enabling plaintiffs, a group of secured lenders, to foreclose on the collateral.
• *Allstate Ins. Co v. Nair, 2011 WL 1461371 (2d Cir. April 18, 2011).  Affirming grant of summary judgment and holding that former insurance agent’s claims against insurer were barred by a prior settlement agreement between the parties.
• *Baghdasaryan v. Holder, 2011 WL 676936 (9th Cir. Feb. 25, 2011).  Granting petition for review of Board of Immigration Appeals’ denial of asylum application of Armenian citizen who had been jailed and tortured in Armenia as result of his opposition to government policies, and remanding for a new hearing on grounds of ineffective assistance of counsel in initial asylum proceeding.
• Ad Hoc Shrimp Trade Action Committee v. United States and *Thai Union Frozen Products Public Co., et al., 2011 WL 665442 (Fed. Cir. Feb. 22, 2011).  Affirming U.S. Court of International Trade antidumping order on frozen warm water shrimp from Thailand and rejecting challenge to order by domestic shrimp industry.
• *IMS Health, Inc. v. Sorrell, 630 F.3d 263 (2d Cir. 2010), aff’d, 131 S.Ct. 2653 (2011).  Reversing district court ruling and holding that a state restriction on the use of drug prescriber data for the purpose of marketing prescription drugs violated First Amendment protection of commercial speech because state’s asserted interest in medical privacy was too speculative and the restriction did not materially advance and was not narrowly tailored to achieve other asserted interests in public health and containment of medical costs.
• Nebraska, ex rel. Bruning v. U.S. Dept of Interior, 625 F.3d 501 (8th Cir. 2010).  Reversing district court and remanding to National Indian Gaming Commission for determination whether parcel of land owned by amicus *Ponca Tribe of Nebraska, which participated in Eighth Circuit oral argument, is eligible for gaming under the Indian Gaming Regulatory Act.
• Securities and Exchange Commission v. *Rajaratnam, 622 F.3d 159 (2d Cir. 2010).  Granting writ of mandamus vacating district court order compelling defendant hedge fund managers to disclose to SEC in civil litigation thousands of wiretaps obtained by U.S. Attorney’s office in parallel criminal investigation, before any assessment of lawfulness or relevance of wiretaps.
• Johnson v. *Gruma Corp., 614 F.3d 1062 (9th Cir. 2010).  Affirming confirmation of arbitration award that company drivers were properly classified as independent contractors, not employees, and holding that, under California arbitration rules, arbitrator was not required to disclose that his wife and counsel for company had been law partners for two years nearly a decade before counsel’s initial involvement in the case.
• Medlock v. *United Parcel Service, 608 F.3d 1185 (10th Cir. 2010).  Affirming grant of summary judgment on age discrimination claim that held that employer’s reason for denying plaintiff’s request for reinstatement, following discharge for on-the-job misconduct, was not pretextual.
• *United Technologies Corp. v. U.S. Department of Defense, 601 F.3d 557 (D.C. Cir. 2010).  Reversing summary judgment order and holding that Defense Department’s Freedom of Information Act (“FOIA”) disclosure of defense contractors’ documents regarding quality control processes was arbitrary and capricious and failed to properly apply FOIA exemption for confidential information.
• Pendergest-Holt v. *Certain Underwriter at Lloyd’s of London, 600 F.3d 562 (5th Cir. 2010).  Modifying preliminary injunction requiring insurers to pay costs incurred by Allen Stanford and others in defense of federal government’s criminal and civil enforcement actions against them for an alleged ponzi scheme, and permitting insurers to demonstrate that the alleged misconduct is excluded from insurance coverage before government actions concluded.
• RSM Production Corp. v. *Fridman, 2010 WL 2838582 (2d Cir. July 21, 2010).  Affirming dismissal of claim against director of Russian oil company for tortious interference with plaintiff's contract with foreign government for oil and natural gas exploration because complaint did not adequately allege that defendant caused any injury to plaintiff.
• Henry v. *United Parcel Service, Inc., 2010 WL 2094014 (2d Cir. May 26, 2010).   Affirming dismissal of plaintiff's action to vacate arbitration award in favor of his former employer.
• Mayberry v. *Battles, 2010 WL 2059302 (4th Cir. May 21, 2010).  Affirming grant of sanctions motion under Rule 37 of the Federal Rules of Civil Procedure terminating plaintiff’s suit with prejudice.
• Hamilton v. *Hartford Life & Accident Ins. Co., 2010 WL 1858032 (9th Cir. May 11, 2010).  Affirming dismissal of ERISA claim for disability benefits on grounds that plan unambiguously precluded them and thus plaintiff’s contrary expectation was unreasonable.
• Koike v. *Starbucks Corp., 2010 WL 1784727 (9th Cir. May 5, 2010).  Affirming denial of class certification on claims that assistant managers worked off-the-clock and holding that classwide treatment of claims was inappropriate because individualized factual determinations would be required to determine whether putative class members actually worked off-the-clock and whether employer had actual or constructive knowledge of the off-the-clock work allegedly performed, despite plaintiffs’ contention that labor budgets, strict cost controls, and incentive compensation plan compelled off-the-clock work.