Eric Shumsky is a nationally recognized appellate lawyer. He handles high-stakes appeals across an array of subjects, with a focus on technology. He specializes in translating cases that are complex – whether because of the legal doctrine, the technology, or the record – into the specialized format of appellate briefing and argument.

Chambers USA reports that Eric is “hailed as ‘highly intelligent, an effective communicator and a great writer’ by contacts, and his high-profile work in the tech patent sector is of particular interest to those who recognize him as one who ‘prepares meticulously, anticipates every question, and is a gifted orator.’” Legal 500 touts his “exceptional courtroom demeanor and presentation skills” as one of “the finest appellate litigators in the nation.” And Reuters, in a report reviewing some 17,000 practitioners, identified Eric as part of an “elite cadre” of 75 lawyers who are “the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court.” 

Eric has served as appellate counsel to a who’s who of leading companies, including AT&T, Del Monte, DISH Network, Facebook, Genentech, Gilead, KPMG, LG Electronics, LinkedIn, Lyft, Microsoft, Morgan Stanley, Netflix, Norfolk Southern, Synopsys, Twitter, and Union Carbide. Across an array of industries, Eric has briefed and argued issues as diverse as patent and copyright, labor and employment, preemption, punitive damages, environmental law, national security, and foreign sovereign immunity. He has been a primary author of more than 100 briefs in the Supreme Court alone.

Eric has particular expertise in matters of technology and intellectual property. He has been counsel in dozens of patent appeals in the Federal Circuit—litigating patents ranging from semiconductor construction, computer architecture, and genetic sequencing to tobacco curing, keyboard trays, and electrical junction boxes. And he has handled multiple appeals involving novel issues concerning the regulation of the internet, including computer fraud, takedown notices, and internet domain names.

In addition to traditional appellate work, Eric has years of experience developing legal strategy in high-profile and complex cases in trial courts. Eric has performed this role in high-stakes multi-district litigation, criminal trials, and civil litigation involving critical dispositive motions. 

Prior to joining Orrick, Eric was a partner in the appellate group at Sidley Austin. He previously worked as a law clerk for the Honorable M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit, and the Honorable Wm. Matthew Byrne, Jr., of the United States District Court for the Central District of California.

  • Eric has led numerous engagements for clients whose business is technology and innovation. Recent examples include:

    • Tri-City LLC v. New York City Taxi and Limousine Commission (N.Y. App. Div.) – represents Lyft in this challenge to New York regulation of ridesharing companies
    • DISH Network v. National Labor Relations Board, 953 F.3d 370 (5th Cir. 2020) – arguing for DISH, persuaded the Fifth Circuit that an NLRB determination against DISH lacked substantial evidence. [Oral argument] [Opinion]
    • Huang v. Twitter, 2019 WL 6726329 (Cal Ct. App. 2019) – successfully argued for Twitter in one of the most closely watched gender discrimination cases in the tech industry. [Opinion]
    • Twentieth Century Fox Film Corp. v. Netflix, 2018 WL 3198560 (Cal. Ct. App. 2018) – successfully represented Netflix in this headline-grabbing battle over alleged employee poaching and the enforceability of Fox’s employment contracts.
    • Facebook v. Power Ventures, 828 F.3d 1068 (9th Cir. 2016) –argued and prevailed for Facebook in this seminal case concerning the Computer Fraud and Abuse Act. [Oral argument] [Opinion]

    Relatedly, Eric has deep experience handling patent appeals in the Federal Circuit, including:

    • Plastic Omnium v. Donghee America, 943 F.3d 929 (Fed. Cir. 2019) – successfully argued for Donghee in a multi-front patent war over their groundbreaking automotive fuel tanks. [Oral argument] [Opinion]
    • Idenix Pharmaceuticals v. Gilead Sciences, 941 F.3d 1149 (Fed. Cir. 2019) – helped lead the team representing Gilead in its successful bid to overturn one of the largest patent verdicts ever.
    • Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, 896 F.3d 1322 (2018) – represented Microsoft as amicus curiae in a case concerning sovereign immunity in the patent domain.
    • EMC Corp. v. Clouding Corp., 686 Fed. Appx. 857 (Fed. Cir. 2017) – successfully argued for EMC (now Dell) and VMWare in an appeal concerning patents covering artificial intelligence systems. Persuaded the Federal Circuit that the agency reviewing the patents had violated foundational principles of administrative law by failing to address key arguments. [Oral argument] [Opinion]
    • Synopsys, Inc. v. Mentor Graphics Corp. (Fed. Cir.) – represented Synopsys in multiple interrelated appeals. These appeals present novel issues under the America Invents Act, the Administrative Procedure Act, and involve high-stakes district court litigation. The dispute involves 11 different patents asserted in federal courts in two different states, and concerns critical technology for verifying that integrated circuits perform properly.
    • Carnegie Mellon University v. Marvell Technology Group, Ltd., 807 F.3d 1283 (Fed. Cir. 2015) – successfully defended Carnegie Mellon University on appeal in a highly publicized and long-running dispute concerning patents about reading data from computer hard drives. This appeal set the stage for an eventual settlement including a $750 million payment to CMU.
    • Imaginal Systematic, LLC v. Leggett & Platt, 805 F.3d 1102 (Fed. Cir. 2015) – in an appeal concerning technology for fabricating box springs, convinced the Federal Circuit to uphold the district court's determination of non-infringement.

    Other significant cases in which Eric has led appellate teams include the following:

    • Hughes v. United States, 71 U.S. 232 (2018) – successfully argued this case in the Supreme Court regarding retroactive application of changes to the Federal Sentencing Guidelines. The Court ruled 6-3 for our client after having previously divided 4-1-4 on the same issue. [Oral argument/Opinion]
    • Pinter-Brown v. Regents of the University of California, 48 Cal. App. 5th 55 (2020) – argued successfully for the University of California, persuading the court to overturn an adverse jury verdict because “a miscarriage of justice” had occurred. [Opinion]
    • In re: Asbestos Litigation (Naim v. Union Carbide Corp.), No. 629, 2018 (Del. 2019) – prevailed in the Delaware Supreme Court in this product liability case for Union Carbide.
    • Heller Ehrman v. Davis Wright Tremaine, 4 Cal. 5th 467 (Cal. 2018) – argued and prevailed before the California Supreme Court in this seminal case concerning law firm bankruptcies and the unfinished business doctrine. [Oral argument] [Opinion

    In addition, Eric regularly contributes legal analysis to trial-court litigation and regulatory matters presenting unusual or complex issues of law. Prominent examples include: 

    • In re: Chinese-Manufactured Drywall Products Liability Litigation (E.D. La., 5th Cir.) – represents Chinese companies, including Chinese sovereign entities, in this MDL concerning allegedly defective drywall.
    • In re: NSA Telecommunications Records Litigation, (N.D. Cal, 9th Cir.,S. Ct.) – lawsuit concerning telecommunications providers’ liability for alleged assistance in terrorist surveillance programs, and the constitutionality of the FISA Amendments Act.
    • United States v. Acevedo Vila (D.P.R. 2009) – criminal defense of former Governor of Puerto Rico stemming from alleged campaign finance and tax charges. The jury acquitted on all counts.
    • Morris v. People’s Republic of China (S.D.N.Y. 2007) – successful defense of China against an effort to redeem pre-Revolutionary Chinese bonds.

Insights

News