Appellate & Supreme Court

Squire Sanders’ appellate experience is broad and deep. It includes successful appeals in the US Supreme Court, every federal circuit and the appellate courts of most states. Our lawyers include several former judges, more than 15 former law clerks for seven different federal appellate courts, including the Supreme Court, and other former law clerks from various state judicial posts. These premier lawyers handle appeals in every substantive and procedural area of the law, civil and criminal. Although the appellate group often serves clients that the firm represented in the trial courts, it also attracts clients specifically interested in our appellate knowledge and experience.

The talent and ability of our appellate lawyers is evident in a few recent successes:

• Sixth Circuit Reverses Judgment That Required Insurer to Refund Premiums on Fraudulently Obtained Policies. In a decision of broad significance to the life insurance industry, the Sixth Circuit held that the receiver for entities that orchestrated a fraudulent viatical scheme could not rescind the fraudulent policies and obtain refunds of the premiums paid. The court held that the policies were voidable at the insurer's option only, and also that the insurer's unclean hands defense was valid against the receiver, who stood in the shoes of the receivership entities. The court reversed the lower court's multimillion dollar judgment and remanded with instructions that the district court enter summary judgment for the insurer. Wuliger v. Manufacturers Life Ins. Co., No. 08-3342 (6th Cir., May 28, 2009), No. 08-3342 (6th Cir., May 28, 2009)
• Seventh Circuit Reverses Certification of Class in Consumer Protection Action: On an interlocutory appeal, the Seventh Circuit instructed the district court to decertify a class of purchasers of our client’s clothes dryers, holding that there were no common issues of law or fact relating to the labeling and advertising of the dryers as having a stainless steel drum. Thorogood v. Sears, Roebuck & Co., 547 F.3d 742 (7th Cir. 2008). The individual plaintiff’s claim was then dismissed, which was upheld on appeal. Thorogood v. Sears, Roebuck & Co., No. 09-3005, 2010 WL 476653 (7th Cir. Feb. 12 , 2010). The Seventh Circuit subsequently ordered the district court to enter an injunction against all class members and their counsel from seeking to certify a similar class in state or federal court. Thorogood v. Sears, Roebuck & Co., 2010 WL 4286367 (7th Cir. Nov. 2, 2010).
• Ohio Court of Appeals Sides with Hospital in Dispute Involving $500 Million in Assets: The Ohio Court of Appeals affirmed a decision permitting the withdrawal of our client, a nonprofit hospital, from a hospital system governed by a joint operating arrangement. The court sided with our client based both on a breach of contract and a fiduciary breach by the system. At stake was control of approximately US$500 million in charitable assets. Health Alliance of Greater Cincinnati v. Christ Hospital, 2008 Ohio App. LEXIS 4191 (Ohio Ct. App. Sept. 30, 2008).
• First Circuit Reverses Denial of Arbitration and Orders Arbitration in China: The First Circuit held that a defendant who is not a signatory to an arbitration agreement may immediately appeal the denial of a motion to compel international arbitration under the Federal Arbitration Act. Recognizing a circuit split on the issue, the court refused to follow the approach used by the DC and Tenth Circuits, which limits the right of a non-signatory to appeal. The court then reversed the district court’s refusal to compel arbitration in China. Sourcing Unlimited, Inc. v. ASIMCO Int’l, Inc., 526 F.3d 38 (1st Cir. 2008).
• Sixth Circuit Affirms Dismissal of Shareholder Derivative Action: The Sixth Circuit clarified the standard for demand futility in shareholder derivative actions, affirming dismissal of an action against our client, an Ohio manufacturer. The court held that generic allegations of futility cannot withstand dismissal and that futility must be determined at the time of filing. Auletta v. Ortino (In re Ferro Corp. Derivative Litig.), 511 F.3d 611 (6th Cir. 2008).
• Mission Residential, LLC v. Triple Net Props., LLC, 275 Va. 157 (Va. 2008): The Virginia Supreme Court vacated a multimillion dollar arbitration award upon determining that our client (a 50 percent member of an LLC) did not agree to arbitrate a derivative claim brought by the other 50 percent member ostensibly on behalf of the LLC. Mission Residential, LLC v. Triple Net Props., LLC, 275 Va. 157 (Va. 2008).

To further explore the depth and breadth of Squire Sanders’ appellate practice, please contact any of our appellate lawyers for additional information on the following:

Overturning Adverse Trial Court Decisions

A successful appellate practice is built around representation of the appellant. In many courts, the affirmance rate is around 90 percent. Knowing how to frame the case to convince an appellate court to overturn the result reached by the trial court takes particular skill and attention to detail. We are often entrusted with this task, particularly when the stakes are high. We have recently obtained several notable reversals for clients in federal and state appellate courts across the country.

Preserving a Win Below

In addition to a vibrant appellant practice, appellate litigators must also be equipped to defend lower court decisions on appeal. We have a proven track record of victories for appellees in a wide range of cases.

Supreme Court and Amicus Practice

An appellate practice necessarily involves expertise before the nation’s highest court. Our appellate lawyers are intimately familiar with Supreme Court practice and procedure, both at the certiorari stage and in merits cases.

Extraordinary Writs, Motions and Stays in Appellate Courts

Extraordinary writs are an often misunderstood area of appellate practice. But often when parties need to avail themselves of this mechanism, the stakes are high. We are fully conversant with extraordinary writ practice in the state and federal courts.

Experience Outside the Usual: Pro Bono Appeals and Publications

Our appellate lawyers devote a substantial amount of time to assisting indigent litigants in appellate proceedings. Frequently, courts appoint our lawyers because of our expertise and experience. We answer the call, and we do so to achieve favorable results for the client.

The Sixth Circuit Appellate Blog

The Sixth Circuit Appellate Blog fosters discussion on news about and opinions issued by the United States Court of Appeals for the Sixth Circuit with an emphasis on cases pertaining to business interests. It also includes an En Banc Watch and features guest bloggers on occasion, as well as interviews with Sixth Circuit judges.

Visit the Sixth Circuit Appellate Blog