Supreme Court and Appellate Litigation — Recent Engagements

Demiraj v. Holder
(U.S. Supreme Court)

Orrick attorneys filed a cert petition at the Supreme Court on behalf of a young woman and her son who fear persecution at the hands of a dangerous sex trafficker in retaliation for the father's cooperation with the U.S. government as a material witness. No one disputes that they face mortal danger if they are deported back to their home. The question presented is whether, under the Immigration and Nationality Act ("INA"), individuals persecution in retaliation for the acts of a family member amounts to persecution "on account of" membership in a particular social group. The lower court agreed that a family is a "particular social group," but nonetheless determined that persecution in retaliation for the acts of a family member is not covered under the INA, which therefore provides no protection to the petitioners in this case. The cert petition argues that the lower court's analysis reaches far beyond the plain text of the governing statute, violates longstanding federal policy, and creates a 4-1 circuit court split. Six amicus briefs have been filed by advocacy groups, immigration law scholars, and former federal prosecutors including a former attorney general and a former FBI director in support of Orrick's petition.

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Media Coverage

Nevada Comm. on Ethics v. Carrigan
(U.S. Supreme Court)

Orrick was lead counsel for Michael A. Carrigan, a city councilman in Sparks, Nevada, in this landmark Supreme Court case about whether the First Amendment permits the censure of a legislator for voting on a measure his volunteer campaign manager had lobbied for.

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Fox v. Vice
(U.S. Supreme Court)

The Supreme Court unanimously ruled in favor of Orrick's client, Police Chief Ricky D. Fox, in the closely watched civil rights case. In a 13-page unanimous opinion by Justice Kagan, the U.S. Supreme Court held that when a civil rights lawsuit under Section 1988 includes both frivolous and non-frivolous claims, a court may award reasonable attorney's fees to a defendant for costs that it would not have incurred but for the frivolous claims. And in so doing, the court followed and accepted the line of reasoning argued by Orrick.

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Melvin Steinhardt v. UBS Securities LLC et al.
(Second Circuit Court of Appeals)

Orrick prevailed in a Second Circuit case involving a putative class action against UBS. A putative class of Genesco Inc. shareholders sued UBS for tortiously interfering with the merger between Finish Line and Genesco. The action sought more than $800 million in damages—representing the merger premium that Genesco shareholders allegedly lost as a result of the termination of the merger. Genesco shareholders claimed that UBS tortiously interfered with their purported "business relationship" with Finish Line, the acquiring company. Orrick argued that UBS could not have interfered with a business relationship between Genesco's shareholders and Finish Line because the shareholders had no business relationship with Finish Line. Indeed, the merger agreement had a clause that explicitly disclaimed any intention to create third-party beneficiary rights. Orrick had two conflicting district court opinions: The district court in this case agreed with Orrick and dismissed the complaint, but in another iteration of exactly the same case, another district judge came out the other way, finding that the Genesco shareholder there did present a viable claim under Tennessee law. A three-judge panel of the Second Circuit unanimously agreed with Orrick's position in an opinion that tracked its analysis at every step. This victory represents an early termination of what could have been a costly litigation involving a very large claim against UBS.

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Tivo, Inc. v. Echostar Corporation
(Federal Circuit Court of Appeals)

Orrick represented EchoStar (also known as DISH Network), the second largest satellite TV company (and the third largest pay TV provider) in the United States, in one of the most closely watched patent appeals in the country. In connection with a patent infringement claim, TiVo secured a contempt order and an injunction against EchoStar, which ordered the company to turn off the function that allows customers to record, fast-forward, rewind, or pause. The order would have devastated the company. EchoStar lost 2-1, but defying all odds, Orrick persuaded the full court to vacate the panel opinion and set the case for a new argument before the whole court. The Federal Circuit unanimously reversed the infringement injunction by a vote of 12-0. That ruling wiped out $400 million in liability and the life-threatening injunction (leaving intact $95 million in contempt sanctions). TiVo immediately settled the case. Upon announcement of the settlement, EchoStar's stock rose 17% (or about $2 billion).

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Bruesewitz v. Wyeth Inc.
(U.S. Supreme Court)

Orrick has handled hundreds of product liability litigations throughout the United States for Wyeth (now Pfizer) concerning injuries allegedly associated with the use of the preservative thimerosal in childhood vaccines. In Bruesewitz, Orrick helped litigate the case at the Supreme Court and secured a significant victory on behalf of Wyeth.

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Facebook v. ConnectU
(Ninth Circuit)

Orrick represented Facebook in a bet-the-company litigation revolving around who is the creator and rightful owner of Facebook—the most successful social network in history. Facebook founder Mark Zuckerberg was accused by some of his Harvard classmates that he stole the idea for Facebook from them. The case was settled in a two-page handwritten agreement, but Zuckerberg's classmates claimed that the agreement was infected by securities fraud and was therefore unenforceable. The trial court rejected the claims and dismissed the cases. The Ninth Circuit agreed, and the ruling ended years of rancorous litigation that spanned two coasts.

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Campbell v. PricewaterhouseCoopers LLP
(Ninth Circuit Court of Appeals)

Orrick secured a major victory in the Ninth Circuit for PricewaterhouseCoopers (PwC), reversing the district court's entry of summary judgment against PwC. The case was about whether PwC's unlicensed associate accountants were eligible for exemption from California overtime requirements. The Ninth Circuit found that the district court erred in holding that unlicensed accountants are, as a matter of law, categorically ineligible for exemption from overtime under California's Professional Exemption because they do not hold California CPA licenses. Notably, the Court observed that the district court's decision, if upheld, would have had "significantly troubling" results, not just for the accounting profession, but also for the professions of law, medicine, engineering, architecture, optometry, dentistry and teaching in California.

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Mattel Inc. v. MGA Entertainment
(Ninth Circuit Court of Appeals)

Orrick represented MGA Entertainment in this Ninth Circuit appeal challenging the injunction requiring the maker of Bratz dolls to abandon the line and turn over its entire trademark portfolio to Mattel. The original district court ruling in 2008 transferred the rights to the entire $1 billion-a-year Bratz brand to Mattel and prohibited MGA from producing all female Bratz dolls. Mattel was also awarded $100 million. The U.S. Court of Appeals for the Ninth Circuit denied a stay pending appeal, stating that it did not believe that MGA was likely to win the case on appeal. After that order came down, MGA hired Orrick, only two weeks before the opening brief was due. Orrick partner E. Joshua Rosenkranz argued the case, after the recall was already under way. Three hours after leaving the courtroom, the appellate court issued an order staying the injunction, and on July 22, 2010, they overturned the ruling that gave the Bratz franchise to Mattel, in an opinion that also erases Mattel's $100 million jury verdict on damages. This appellate victory set up the client (and Orrick) for a retrial that yielded one of the biggest reversals in litigation history—a $309 million judgment in MGA's favor.

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