Ropes & Gray’s Appellate and Supreme Court practice combines the firm’s substantive and appellate experience to provide our clients the most effective appellate advocacy available. Our attorneys regularly appear before the U.S. Supreme Court, federal circuit courts, and state appellate courts throughout the United States. We have argued leading, precedent-setting cases in the areas of constitutional law, intellectual property, antitrust, securities, insurance, criminal law, the False Claims Act, and the Foreign Sovereign Immunities Act.
 
Supreme Court Litigation

Ropes & Gray’s appellate attorneys have argued 19 cases before the U.S. Supreme Court, including five in the past two terms. Our experienced appellate litigators have filed numerous successful petitions for certiorari, persuading the Justices that the issues of significance to our clients are among the few the Court should hear each year. Our Supreme Court experience reflects the breadth of issues that are of interest to our clients. The merits cases our appellate attorneys have handled include the unconstitutionality of imposing onerous new burdens on past business activity, protecting intellectual property rights against those who facilitate infringement, preemption of state laws that interfere with conducting business on a national scale, implied antitrust immunity, the limitations period for bringing securities fraud claims, the False Claims Act’s public disclosure bar, and the immunity of foreign states and their instrumentalities to suit.

Most recently, in November 2009, Ropes & Gray presented oral argument in Jones v. Harris, regarding the standard for determining whether the fees charged by an investment advisor to a mutual fund are excessive. Jones brings before the Supreme Court an issue that Ropes & Gray has litigated in multiple district courts and courts of appeals. Also in 2009, Ropes & Gray successfully urged the Supreme Court, in Yeager v. United States, that, under the Double Jeopardy Clause, the petitioner’s acquittal on certain charges precluded retrying him on related charges as to which the original jury failed to reach a verdict.

We also regularly file amicus briefs in the Supreme Court on behalf of individual clients or associations, protecting their interests and providing the Court with the benefit of their experience. In 2009, in Bilski v. Kappos, we filed an amicus brief on behalf of a leading insurance association informing the Court of the real world consequences to such businesses of an overly expansive standard for recognizing business process patents. Our appellate lawyers have filed amicus briefs in each of the past two terms on behalf of a leading association of criminal defense lawyers urging, in United States v. O’Brien, that statutes imposing mandatory minimum sentences based on particular facts are subject to the Sixth Amendment jury trial right if the sentence would otherwise be substantively unreasonable, and, in Boyle v. United States, addressing the standard for proving an association-in-fact enterprise under RICO. In 2009, we also filed briefs regarding the international law protections against child abduction, the indefinite detention of legal residents suspected of being enemy combatants, and the right of those who are wrongfully detained to be released into the United States. In recent years, our attorneys have filed amicus briefs in many of the most important cases before the Court affecting the business community, including the statute of limitations on securities fraud claims, the standard for pleading an antitrust conspiracy, and federal preemption.

Courts of Appeals

Ropes & Gray’s experienced appellate advocates successfully defend our favorable trial court judgments, while attacking and overturning adverse decisions. Our attorneys have argued cases before every federal circuit court and numerous state courts of appeals. We have won major appellate victories, sustaining favorable judgments in cases involving billions of dollars, and have obtained reversals of adverse district court rulings. In many instances, clients have called upon the firm’s appellate attorneys to handle the appeal after the proceedings in the trial court were concluded. In cases in which the firm also acts as trial counsel, our litigators’ extensive experience handling appeals allows us to identify possible appellate issues early in litigation and to present the case in a manner that ensures the greatest chance of success before an appellate court, if necessary. In appropriate cases, our Appellate and Supreme Court practitioners get involved from the outset of the case, helping to identify and preserve issues for appeal and drafting dispositive motions.

Our appellate experience extends to all areas of the firm’s litigation practice:

Antitrust
Ropes & Gray attorneys have successfully handled numerous antitrust matters before the U.S. Supreme Court and the federal courts of appeals. Ropes & Gray's antitrust appellate lawyers have achieved precedent-setting appellate victories in diverse issues including extraterritorial jurisdiction, substantive merger law, exclusive dealing, implied immunity, antitrust standing, monopolization, and antitrust damages. The team has filed amicus briefs on behalf of clients in notable antitrust matters before the Supreme Court and litigates patent-antitrust matters in the Federal Circuit.

Complex Business Litigation
Our appellate litigators have achieved major victories on behalf of our clients in cases raising the most complicated legal issues. A large utility holding company turned to Ropes & Gray to successfully challenge, in the Supreme Court, the constitutionality of a retroactive liability exceeding $100 million presumptively imposed by a 1992 federal statute in connection with coal mining operations that were terminated in 1965. Our successes in the federal courts of appeals include the rejection of tort claims arising out of the first bombing of the World Trade Center, and an affirmance enforcing arbitrability of a class claim asserted by a university endowment against a Russian oil and gas company. We also regularly handle appeals in state courts of appeals, including successfully defending the dismissal of a $90 million suit alleging breach of a subordination note, as well as claims by a local cable company against an affiliate of a major utility of violations of the Telecommunications Act of 1996.

Government Enforcement
Ropes & Gray’s experienced government enforcement lawyers are frequently able to resolve compliance issues before they grow into problems. But when a matter does turn into litigation, we aggressively represent our clients at both the trial and appellate court levels. Our appellate attorneys have, for example, briefed and argued numerous appeals under the False Claims Act before the U.S. Supreme Court and federal courts of appeals, including numerous cases addressing the public disclosure bar and statute of limitations—threshold defenses that can terminate the litigation at the outset.

We have represented many criminal defendants on appeal, often taking over the matter on appeal following trial, or seeking post-conviction relief. Ropes & Gray has handled merits and sentencing appeals throughout the United States, including some of the most high profile prosecutions. The firm represented a former CEO of Enron before the Fifth Circuit, successfully defending vacatur of his conviction. In Yeager v. United States, Ropes & Gray took an interlocutory appeal on behalf of another former Enron executive all the way to the Supreme Court, successfully arguing that his retrial would violate the Double Jeopardy clause. We frequently file amicus briefs in the Supreme Court on behalf of a leading association of criminal defense lawyers, including in the seminal cases establishing the unconstitutionality of the mandatory federal sentencing guidelines.

Insurance
Insurers rely on Ropes & Gray to provide appellate representation when billions of dollars in claims are at stake. Ropes & Gray successfully represented insurers on appeal in defeating a claim for a second recovery of billions of dollars in policy limits stemming from the World Trade Center tragedy. The firm has defended, on appeal, summary judgment on a billion dollar asbestos-in-property claim against first-party insurers and a $100 million claim by a major landowner against its excess insurers for losses attributable to flooding caused by Hurricane Katrina. In E.R. Squibb & Sons, Inc. v. Lloyd’s & Companies, in addition to the issues of insurance law briefed and argued on appeal, we established favorable Second Circuit law regarding federal jurisdiction in suits involving Lloyds syndicates, despite adverse precedent in the Seventh Circuit.

Intellectual Property
Ropes & Gray has a long and distinguished history of appellate advocacy relating to intellectual property rights. Our lawyers have successfully represented clients before numerous U.S. federal appellate courts. We have an active practice before the U.S. Court of Appeals for the Federal Circuit, before which our lawyers have been involved in more than 100 appeals. In addition to handling appeals from cases the firm successfully handled in the lower tribunal, our appellate experience is often called upon to take appeals from cases handled by others in the trial courts. We recently won major victories in the Federal Circuit on behalf of a biomedical firm in patent appeals raising important issues relating to obviousness, anticipation, and unenforceability due to inequitable conduct.

Labor and Employment
Ropes & Gray has achieved significant appellate victories on behalf of its labor and employment clients. The firm successfully litigated a significant age discrimination case before the U.S. Supreme Court. We successfully defended on appeal a first-in-the-nation summary judgment upholding the lawfulness of a cash balance retirement plan against challenges brought under the Employee Retirement Income Security Act (ERISA) and the Age Discrimination in Employment Act (ADEA).

Securities
Ropes & Gray’s securities litigation practice, one of the most experienced in the United States, has achieved significant victories for our clients at the appellate, as well as the trial court level. We have successfully defended on appeal the dismissals of numerous securities class-action suits, including litigation regarding initial public offerings—the largest-ever consolidated securities class-action. We have litigated across the United States seminal appellate cases involving the Investment Company Act, including claims relating to market timing and mutual fund fees. Ropes & Gray attorneys took the lead before the Supreme Court in Jones v. Harris, representing the respondent in a case that will establish the national standard for adjudicating claims that mutual fund advisors were paid excessive fees.

Who We Are

Our appellate lawyers have a broad range of experience handling appeals in both private practice and in government service.  The practice includes attorneys who have served in the Office of the Solicitor General, the appellate staffs of the U.S. Department of Justice’s Civil and Antitrust Divisions, including a former Deputy Assistant Attorney General for civil appeals, and as Special Assistants to state Attorneys General. Six of our attorneys have argued a total of 20 cases before the U.S. Supreme Court. Our appellate litigators have a combined experience handling hundreds of appeals, including in every federal court of appeals and numerous state appellate courts, with multiple attorneys having individually argued more than 40 appeals. Ropes & Gray attorneys have clerked with the U.S. Supreme Court, 12 federal circuit courts, and the supreme courts of six states and two foreign countries.

Contact:
Doug Hallward-Driemeier

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