Appellate Practice

Most of our work is focused on doing just one thing — winning on appeal. Leading trial lawyers regularly seek us out to handle their most consequential and challenging matters on appeal. We approach each case with a fresh perspective, a bird’s-eye view of the law, and a creative and strategic sense of how to reframe the issues for success on appeal.

We brief and argue high-stakes cases on a wide range of issues. Among other things, our experience spans access to the courts, administrative law, antitrust, class actions, consumers’ and workers’ rights, environmental justice, federal jurisdiction, and constitutional issues of every stripe–particularly federal preemption and the First Amendment. We also consult on strategy, prepare the occasional amicus brief, and seek and oppose discretionary review. In some cases, we are retained at the trial level to ensure that issues are properly framed and preserved for appeal.

Our team of experienced appellate advocates has handled high-stakes cases in the U.S. Supreme Court, every federal circuit, and many state supreme courts. Among private firms that work in the public interest and on behalf of plaintiffs, our national appellate practice is unsurpassed in its breadth, creativity, and ability to deliver results.

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Alaska Trustee v. Ambridge (Alaska Supreme Court) – Consumers’ Rights. Jon Taylor and Deepak Gupta represent the plaintiffs in this appeal concerning the extent to which foreclosure mills are covered by state and federal consumer laws regulating collection practices. The appeal also raises a question about the extent to which individual owners may be held personally liable for consumer collection abuses. Jon Taylor, an associate with the firm, argued the case before the Alaska Supreme Court in March 2014. Brief for Appellees | Alaska Supreme Court Opinion
Norman v. Florida (Supreme Court of Florida) – Second Amendment. We submitted an amicus brief on behalf of Everytown for Gun Safety in this constitutional challenge to Florida’s statute regulating the open carry of firearms. Our brief provides the court with additional historical analysis, tracing the seven-century tradition of regulations of public carry of weapons. Brief for Everytown for Gun Safety
Williams v. City of Philadelphia (Commonwealth Court of Pennsylvania) – Public Health. Led by Rachel Bloomekatz, we represented a coalition of 15 public health nonprofits, including the American Heart Association and the American Medical Association, as amici in this challenge to Philadelphia’s distribution tax on sodas and other sugary beverages. Our brief in support of the City informed the Court about the devastating health consequences caused by the overconsumption of sugar-sweetened beverages, and explained why the challengers’ theory would upset the balance of state and local governance. Brief of American Heart Association, et al. | Coverage at Philadelphia Business Journal
Wrenn v. District of Columbia (D.C. Circuit) – Second Amendment. In this constitutional challenge to the District of Columbia’s restrictions on carrying guns in public, we represent Everytown for Gun Safety, the nation’s largest gun-violence-prevention organization. Our briefs before the D.C. Circuit and on remand to the district court survey  the legal history from 1300s England to post-Civil War America and demonstrate that the District’s regime is consistent with a longstanding, seven-century tradition of Anglo-American regulation and is therefore constitutional. In a second appeal to the D.C. Circuit, we submitted a brief that rebuts the arguments by the NRA and its allies.  D.C. Circuit Brief for Everytown for Gun Safety (2016) | District Court Brief for Everytown for Gun SafetyD.C. Circuit Brief for Everytown for Gun Safety (2015)
Grace v. District of Columbia (D.C. Circuit) – Second Amendment. In this constitutional challenge to the District of Columbia’s restrictions on carrying guns in public, we represent Everytown for Gun Safety, the nation’s largest gun-violence-prevention organization. We submitted a brief surveying the seven-century-long history of regulation of open carry to the district court, where Deepak Gupta also presented at oral argument. The brief before the D.C. Circuit reiterates that the District’s regime is consistent with the longstanding, Anglo-American tradition of regulation and is therefore constitutional. D.C. Circuit Brief for Everytown for Gun Safety | District Court Brief for Everytown for Gun Safety
West Virginia, et al. v. EPA (D.C. Circuit) – Consumers’ Rights, Environmental Justice. In this case, a group of states have challenged the Environmental Protection Agency’s Clean Power Plan, a rule that, by regulating carbon-dioxide emissions from coal power plants, seeks to mitigate the effects of climate change. We filed an amicus brief on behalf of three non-profit organizations – Citizens Utility Board, Consumers Union, and Public Citizen, Inc. – to outline how the agency’s flexible plan will have minimal short-term effects on electricity costs and bring significant long-run benefits to American consumers and low-income families.
Cullinane v. Uber (First Circuit) – Arbitration. In this case, we represent a group of plaintiffs who are challenging the ride-sharing service Uber’s practice of imposing a fictitious airport fee on riders traveling to Boston’s Logan Airport. On appeal, we are challenging Uber’s efforts to force the plaintiffs into individual arbitration. The case presents important questions about how the principles of assent apply in the online contracting setting—a question of first impression in the First Circuit. Our co-counsel in this case are John Roddy and Elizabeth Ryan of Bailey & Glasser. Brief for Plaintiffs-Appellants
Expressions Hair Design, et al. v. New York (Second Circuit) – First Amendment, Due Process, Antitrust PreemptionWe are defending our groundbreaking victory in this constitutional challenge to New York’s “no-surcharge” law on First Amendment, vagueness, and antitrust preemption grounds. Deepak Gupta is lead counsel for the New York merchants challenging the statute, and is representing merchants challenging identical laws in California, Texas, and Florida. Our efforts are being supported by coalitions of amici curiae national retailers and national consumer groups. District Court’s Order | Brief for Plaintiffs-Appelees | More About This Case
Chevron v. Donziger (Second Circuit) – International Comity, Environmental Justice, Federal Jurisdiction, RICO. In an unprecedented effort to collaterally attack an $8.6 billion Ecuadorian judgment holding it accountable for decades of pollution, Chevron brought a RICO action in New York against Amazon rainforest communities and their advocates. More than 40 nongovernmental groups have condemned Chevron’s retaliatory tactics in the case, which has broad implications for international comity, corporate accountability, and the rule of law. Deepak Gupta serves as lead appellate counsel to U.S. lawyer Steven Donziger, the principal defendant in the RICO case. Former Solicitor General Ted Olson is Chevron’s appellate counsel. Petition for Rehearing | CA2 Opinion | Brief for Donziger Appellants | Reply Brief | Brief for Camacho Naranjo and Piaguaje Payaguaje | Brief of Amazon Watch, Amnesty International, et al. | Brief of Earthrights International | Brief of the Republic of Ecuador | Brief of Professors of International Law | Brief of Civil-Law Scholars | More About This Case
Irizarry v. Catsimatidis (Torres v. Gristede’s) (Second Circuit– Workers’ Rights. Working with the Outten & Golden firm, Deepak Gupta successfully argued this appeal in the Second Circuit and obtained a published decision holding that New York billionaire John Catsimatidis is personally liable — as an “employer” under the Fair Labor Standards Act — for millions of dollars in wage-and-hour violations to a class of workers at a chain of grocery stores that he owns. Castimatides was represented on appeal by former Solicitor General Walter Dellinger and Jonathan Hacker of O’Melveny & Myers. The defendant also sought review in the U.S. Supreme Court, which we successfully opposed.  Second Circuit’s Opinion | Catsimatidis’s Opening Brief | Brief of Plaintiffs-Appellees | Catsimatidis’s Reply Brief | U.S. Dep’t of Labor Amicus Brief | National Employment Law Project Amicus Brief | District Court Opinion
New York State Psychiatric Association v. UnitedHealth (Second Circuit) – Healthcare, Mental-Health Patients’ Rights. We represent former Congressman Patrick Kennedy, the author and lead sponsor of the Mental Health Parity and Addiction Equity Act, in this important test case concerning the Act’s scope. The district court held that a fiduciary claims administrator that uses discriminatory standards to make health-insurance-benefits determinations, in violation of the Act, cannot be sued to stop those violations. Our brief explains why that thwarts Congress’s intent. Amicus Brief of Former Congressman Patrick Kennedy
Cabala v. Crowley (Second Circuit) – Federal Jurisdiction, Attorneys’ Fees. The firm prevailed in this appeal concerning whether a defendant remains liable for plaintiff’s attorney’s fees accrued after defendant has offered a settlement for the maximum available damages and fees and costs as mandated by statute, but not including an offer of judgment. We successfully obtained a decision from the Second Circuit holding that, because a settlement offer without an offer of judgment does not fully resolve the case, such a settlement offer does not moot the dispute, and defendants remain liable for any reasonable attorney’s fees accrued by the plaintiff during further litigation. Second Circuit’s Opinion
Chen v. Major League Baseball (Second Circuit) – Workers’ Rights. This appeal concerns whether Major League Baseball’s promotional events are exempt from the Fair Labor Standards Act under an exemption for seasonal “amusement or recreational establishments.” We were retained to argue this appeal after the district court dismissed the case on the ground that events held at a distinct physical location from MLB headquarters may qualify for the seasonal amusement-and-recreation exemption. District Court’s Decision | Brief for Plaintiff-Appellant | Reply Brief
In re NFL Concussion Litigation (Third Circuit) – Class Actions. We represent 34 former professional football players who are challenging a highly controversial class-action settlement of claims that the NFL deliberately hid the long-term dangers of concussions. The settlement forecloses any future awards for those who suffer from CTE (chronic traumatic encephalopathy)–the most serious neurological condition suffered by football players. Thus, if a retired player dies today and an autopsy determines that he suffered from CTE, his family would have its claims completely released but would receive nothing under the settlement. District Court’s Opinion | Brief for Appellants | Reply Brief
Carrera v. Bayer (Third Circuit) – Class Actions. After the Third Circuit issued a controversial decision on the “ascertainability” requirement for class certification, we were retained by the plaintiffs to file a petition for rehearing and coordinate an amicus strategy. Our petition was filed in September 2013.  Nearly eight months later — in May 2014 — the full court denied the petition, but with four judges dissenting and calling on the Federal Rules Committee to examine the issue.  Petition for Rehearing En Banc | Amicus Scholars of Civil Procedure | Amicus Public Justice | Amicus Public Citizen | Amicus Angeion Group | Reuters Report | Third Circuit’s Order and Dissent
Evankavitch v. Green Tree Servicing (Third Circuit) – Consumers’ Rights. We are defending a jury verdict in this telephone-harassment case against a mortgage servicer who called a consumer’s relatives and neighbors in an attempt to collect a debt. On appeal the defendant has raised a novel argument concerning who bears the burden of proof to show whether the phone calls fell within a safe harbor for contacts seeking location information. Brief for Plaintiff-Appellee
Plotnick v. Computer Sciences Corporation (Fourth Circuit) — ERISA, Class Actions. In this case, we represent a proposed class of retired employees of the Fortune-500 company Computer Sciences Corporation. The retirees are challenging the company’s power to amend its deferred compensation plan even after they retired—an important question of the applicability of contract law to deferred compensation plans under ERISA. Matt Wessler is lead appellate counsel on the case, and our co-counsel is Joseph Barton of Cohen Milstein. Opening Brief | Reply Brief
Kolbe v. Hogan (Fourth Circuit) — Second Amendment. We submitted an amicus brief on behalf of Everytown for Gun Safety, supporting a petition for rehearing en banc in this constitutional challenge to Maryland’s assault-weapons law. After the court granted the petition, we filed an amicus brief calling attention to the panel’s extreme, unprecedented opinion, which subjected the law to script scrutiny under the Second Amendment, crafted an illogical rule to deem weapons in “common use,” and failed to consider the historical tradition of regulating dangerous weapons. Brief of Everytown for Gun Safety | Brief of Everytown for Gun Safety in Support of Petition for Rehearing | Panel Decision
Hayes v. Delbert Services Corporation (Fourth Circuit) – Arbitration. To evade courts and regulators, internet payday lender Western Sky sought to cloak itself in tribal sovereign immunity through association with the Cheyenne River Sioux Tribe of South Dakota—a tactic known as “rent-a-tribe.” The lender’s contract requires arbitration of all disputes before an authorized tribal representative under tribal dispute-resolution rules. But no such authorized representative or dispute-resolution rules actually exist. And the agreement forbids the application of state or federal law, thus prospectively waiving any applicable law. In this appeal, we successfully challenged the enforceability of this sham system of tribal arbitration. A unanimous Fourth Circuit panel declared the agreement “unenforceable,” blocking the lender’s attempts to use arbitration “to avoid state and federal law and to game the entire system.” Brief of Appellants | Amicus Brief | Reply Brief | Fourth Circuit’s Opinion
Kingery v. Quicken Loans (Fourth Circuit) – Consumers’ Rights. Under the Fair Credit Reporting Act, a lender that “uses a consumer credit score” in connection with a mortgage application must provide the consumer with certain important disclosures “as soon as reasonably practicable.” Addressing a question of first impression nationally, our brief in this appeal argues that “use” carries its ordinary natural meaning, under which Quicken Loans’ mortgage process “uses” consumers’ credit scores from start to finish. Brief of Plaintiff-Appellant | Reply Brief
Dreher v. Experian (Fourth Circuit) – Class Actions, Federal Jurisdiction, Consumers’ Rights. We successfully opposed Experian’s petition for interlocutory review of a class-certification decision. Experian raised two issues that, if accepted, would threaten the viability of most consumer class actions–namely, whether Article III standing principles preclude certification of a statutory-damages class and whether statutory-damages claims necessarily raise individualized damages issues. Just a few months later, Experian filed another petition, this time under 28 U.S.C. 1292(b), seeking interlocutory review of the same Article III standing question as well as a question about the application of the Supreme Court’s decision in Safeco v. Burr. After stipulating to damages, Experian again appealed, raising questions about the plaintiff’s Article III standing following Spokeo Inc. v. Robins, the application of Safeco, and the interaction between the calculation of statutory damages and class certification. Answer to Rule 23(f) Petition | Answer to 1292(b) Petition | Fourth Circuit Appellate Brief
Clark v. Absolute Collection Service, Inc. (Fourth Circuit) – Consumers’ Rights. We successfully obtained a reversal for the plaintiffs in this putative class action under the Fair Debt Collection Practices Act. The appeal presented a single question of statutory interpretation over which the federal circuits have divided: May consumers communicate their disputes to debt collectors orally, or only in writing? Deepak Gupta is lead appellate counsel and successfully argued the appeal on October 30, 2013. Brief of Plaintiffs-Appellants | Brief of Defendant-Appellee | Reply Brief for Plaintiffs-Appellants | Joint Appendix | Oral Argument | Fourth Circuit’s Opinion
Russell v. ACS (Fourth Circuit) – Consumers’ Rights. Deepak Gupta successfully argued this appeal, leaving in place a jury verdict under the Fair Debt Collection Practices Act. The Fourth Circuit’s published decision establishes, among other things, that a consumer need not dispute a debt to take advantage of the Act’s protections — a question of first impression. Fourth Circuit’s Opinion
Soutter v. Equifax (Fourth Circuit) – Class Actions, Consumers’ Rights. Deepak Gupta was retained (after briefing) to argue opposite former Solicitor General Paul Clement in this post-Wal-Mart class action appeal. The district court certified a statewide class alleging that Equifax violated the Fair Credit Reporting Act by failing to follow reasonable procedures that would have prevented false reports stating that the class members had outstanding state-court judgments. Oral Argument Audio | Post-Argument Letter | 23(f) Petition | Equifax’s Brief | U.S. Chamber of Commerce Amicus Brief | District Court’s Opinion
Tyson v. Car Source (Sixth Circuit) – Consumers’ Rights. The firm represents SeTara Tyson in this appeal concerning remedies for a used car dealer’s “yo-yo” scam under the Equal Credit Opportunity Act and a state-law statute on conversion. Brief for Plaintiff-Appellee | Reply Brief | Oral Argument
Charvat v. First National Bank (Eighth Circuit) – Constitutional Law, Federal Jurisdiction. Deepak Gupta successfully argued this appeal in the Eighth Circuit and obtained a  published reversal of the district court’s dismissal on Article III standing grounds. The Eighth Circuit held that the plaintiff has standing, based on a theory of “informational injury,” to seek statutory damages for the defendant banks’ violation of Electronic Funds Transfer Act notice requirements. The defendants have sought review in the U.S. Supreme Court. Eighth Circuit’s Opinion | Brief of Plaintiff-Appellant | Brief of Appellee First National Bank | Reply for Plaintiff-Appellant | Banks’ Letter Brief on Retroactivity | Plaintiff’s Response on Retroactivity | Brief of Amicus United States | District Court’s Opinion | Joint Appendix
Bavlsik v. GM (Eighth Circuit) – Products Liability, Torts. This case concerns a jury’s finding of negligence by General Motors in the design of a seat-belt system, following a rollover collision that left the plaintiff, Dr. Michael Bavlsik, quadriplegic. While a jury found that GM was negligent under Missouri Law, a district court overturned the jury’s finding and granted GM’s motion for judgment as a matter of law. We are representing the plaintiffs on appeal to the Eighth Circuit, arguing that the court’s entry of judgment for GM should be reversed. Our co-counsel is the Simon Law Firm in St. Louis, Missouri. Brief of Plaintiffs-Appellants | Reply Brief
Arellano v. Clark County Collection Service (Ninth Circuit) – Consumers’ Rights. In this appeal, we are challenging a novel tactic by debt collectors—purchasing consumers’ collection-abuse claims at auction. After our client sued a debt collector for Fair Debt Collection Practices Act violations, the company had her suit sold at auction to satisfy her debt, purchased the claim, and moved to dismiss the lawsuit. We are challenging the debt collector’s maneuver, which uses the debt-collection process to avoid liability for debt-collection abuses. Brief of Plaintiff-Appellant
Peña v. Lindley (Ninth Circuit) — Second Amendment. We represent Everytown for Gun Safety in this Second Amendment challenge to California’s “microstamping” law, which requires manufacturers to implement a technology that helps law enforcement solve and prevent crimes. The brief argues that California’s law does not burden the plaintiffs’ Second Amendment rights and emphasizes the need for firearms regulation to keep pace with technology. Brief for Everytown for Gun Safety
Peruta v. County of San Diego (Ninth Circuit) – Second Amendment. We represent Everytown for Gun Safety, the nation’s largest gun-violence-prevention organization, in this constitutional challenge to California’s regulatory scheme for carrying handguns in public. Surveying the legal history from 1300’s England to post-Civil War America, the brief demonstrates that California’s regime is consistent with a longstanding tradition of Anglo-American regulation and is therefore constitutional. In an opinion tracing the historical regulations outlined in Everytown’s brief, the Ninth Circuit upheld the regulation, writing that the Second Amendment does not confer a right to carry a concealed weapon outside the home. Brief for Everytown for Gun Safety | Ninth Circuit’s Opinion
Silvester v. Harris (Ninth Circuit) – Second Amendment. In this Second Amendment challenge to California’s ten-day waiting period for purchasing firearms, we filed a brief for Everytown in defense of the California law. Our brief argues that the district court’s decision to strike down the  law resulted from a cramped historical analysis and overzealous application of constitutional scrutiny. The brief offers a history of the law, the model legislation from which it emerged, and the broad national consensus that developed around it in the years following its passage–including support from the National Rifle Association and Ronald Reagan. Brief for Everytown for Gun Safety
Moran v. The Screening Pros (Ninth Circuit) – Constitutional Law, Consumers’ Rights, Civil Rights, Administrative Law. We were retained to defend the constitutionality on appeal of California’s Investigative Consumer Reporting Agencies Act, one of the nation’s strongest protections against abuses by background-screening companies. The case also presents a question under the Fair Credit Reporting Act on which the Consumer Financial Protection Bureau has filed an amicus brief on our side. Our co-counsel include the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and A New Way of Life Reentry Project. More About This Case
Dilts v. Penske Logistics (Ninth Circuit) – Preemption, Workers’ Rights. We were retained to appeal a decision holding that the provision of California wage-and-hour law that requires employers to provide meal and rest breaks is preempted, as applied to truck drivers, by the Federal Aviation Administration Authorization Act (FAAAA)—a transportation deregulation measure that expressly preempts state laws relating to “prices, routes, and services.” Brief of Plaintiffs-Appellants | Penske’s Brief | Appellants’ Reply Brief | American Trucking Association Brief | Truck Renting and Leasing Association Amicus Brief | U.S. Chamber of Commerce Amicus Brief | District Court’s Opinion
Brady v. Deloitte & Touche, LLP (Ninth Circuit) – Class Actions, Workers’ Rights. We were retained to brief and argue this appeal from the district court’s decertification of a California-wide class of unlicensed audit employees Deloitte & Touche who allege overtime violations. Reply Brief for Appellants | Response to 28(j) Letter re Comcast v. Behrend | 28(j) Letter re Levya v. Medline Industries (other appellate briefing in this case is filed under seal)
Cabral v. Supple (Ninth Circuit) – Class Actions. After the Ninth Circuit accepted the defendants’ interlocutory appeal of an order granting class certification, we were retained to defend the decision on appeal. The district court certified a class of consumers who purchased an expensive fruit juice that promises to cure arthritis and joint pain. The company’s petition argues that certification should have been denied because those who continue to purchase the drink are “satisfied” customers —  an argument that would transform the placebo effect into a legal defense. Supple’s Opening Brief | Brief for Plaintiff-Appellee | Amicus AARP | Amicus Center for Science in the Public Interest | Amicus Consumer Attorneys of California
Koby v. ARS National Services, Inc. (Ninth Circuit) – Class Actions, Consumers’ Rights. We represented a consumer objecting to this settlement over violations of the Fair Debt Collection Practices Act. Our client, like nearly 4 million absent class members, stands to get no compensation in this settlement of allegations that the debt collector systematically violated the FDCPA by leaving unidentified voicemails on consumers’ phones. At oral argument before the Ninth Circuit, Jon Taylor argued a novel question of class-action jurisdiction, objecting to the ability of absent class members to consent to oversight by a magistrate judge. In January 2017, the Ninth Circuit found that the magistrate judge had abused her discretion by approving the settlement as fair, reasonable, and adequate. Objector’s Brief | Objector’s Reply Brief | Oral Argument | Opinion
Dana’s Railroad Supply, et al. v. Bondi (Eleventh Circuit) – First Amendment.  We are challenging Florida’s criminal no-surcharge statute, which allows merchants to offer a “discount” to consumers who pay in cash instead of a credit card but forbids them from imposing a mathematically equivalent “surcharge” for using a credit card instead of cash. Plaintiffs-Appellants’ Brief  | Eleventh Circuit Reply | Consumer Groups’ Amicus Brief | Major Retailers’ Amicus Brief | Eleventh Circuit’s Opinion | More About This Case
Murphy v. DCI Biologicals (Eleventh Circuit) – Administrative Law, Communications Law, Consumers’ Rights. We were retained to seek reversal of a decision interpreting the Telephone Consumer Protection Act “prior express consent” requirement to permit implied consent to autodialed text messages. Among other things, we contend that the district court’s decision rests on a misunderstanding of Federal Communications Commission regulations and a misapplication of the Hobbs Act. Brief of Plaintiff-Appellant | Reply
Mais v. Gulf Coast Collection Bureau (Eleventh Circuit) – Administrative Law, Communications Law, Consumers’ Rights. We were retained to defend a decision holding that hospital admission forms did not supply the consent necessary to satisfy the Telephone Consumer Protection Act’s “prior express consent” requirement. Brief of Plaintiff-Appellee | Answer to Interlocutory Appeal Petition
Osorio v. State Farm Bank (Eleventh Circuit) – Communications Law, Consumers’ Rights. We successfully obtained reversal in this case. State Farm Bank used an autodialer to call Osorio’s cell phone in a futile attempt to collect a debt he didn’t owe. Long after it had the wrong number, State Farm kept calling–twice per day, and 327 calls in all. Although the calls violated the Telephone Consumer Protection Act, the court rejected his TCPA claims. And the court went further, holding a third-party defendant liable for “negligently” providing Osorio’s number as an emergency contact and ordering her to pay nearly $140,000 in fees for State Farm’s defense. The Eleventh Circuit reversed. Brief for Appellants | Eleventh Circuit Opinion
Manno v. Healthcare Revenue Recovery (Eleventh Circuit) – Class Actions. We successfully opposed a petition for interlocutory review of a decision granting class certification in this consumer class action. Answer to Petition
Crouser v. BAC Home Loans Servicing LP (Eleventh Circuit) – Bankruptcy. We represented the debtor in this appeal raising an unsettled question of bankruptcy law: Whether settlement proceeds from a violation of the automatic stay are the property of the debtors’ Chapter 13 bankruptcy estate. Peter Conti-Brown was lead counsel on appeal.  Brief of Plaintiff-Appellant