Supreme Court & Appellate

Equally rooted in the appellate capital of Washington, D.C., the Bay Area’s technology hub, and the financial center of New York City, Orrick’s Supreme Court & Appellate group is one of the most respected appellate practices in the country. Recognized by the leading global legal directories — Chambers USA (2014-2020) and The Legal 500 US (2011-2020) — we have become a destination for bet-the-company and industry-changing appeals. Our commitment to the ‘‘constellation model” — with multiple bright stars, rather than everyone revolving around one — offers our clients a breadth and depth that few appellate practices can match. As just one example, during the 2018 Supreme Court Term, we produced five successful results in five cases argued by four different members of our team.

• Engagements

  • Lead counsel representing Microsoft in a fight to prevent the U.S. government from unilaterally searching private emails stored in foreign countries. After a win in the Second Circuit, The Washington Post described the case as one of the “most intriguing, consequential, and complex legal cases having to do with technology now in the courts.” The U.S. Supreme Court granted certiorari, and Orrick’s compelling oral argument and merits brief before that Court helped drive the Government to the bargaining table in Congress. After Congress enacted long-overdue legislative reforms, the Supreme Court vacated and remanded the case as moot—vindicating our position that the extraterritoriality of the Stored Communications Act was a question for Congress, not the courts.
  • In a case called the “World Series of IP cases,” Orrick’s appellate team has secured two stunning rulings for Oracle in their long-running lawsuit against Google. In 2014, Orrick persuaded the Federal Circuit to overturn a 2012 ruling that the thousands of lines of Oracle software that Google copied into its Android operating system had no copyright protection. Reuters called this decision a “HUGE ruling.” This led to a jury trial in which a jury found Google’s copying fair use. In March 2018, Orrick’s appellate team scored their next major victory when the Federal Circuit unanimously overturned the 2016 jury verdict and held Google’s copying not fair use a matter of law.
  • A landmark, industry-shaping victory in the U.S. Supreme Court in Kirtsaeng v. John Wiley & Sons, Inc. — one of the most significant copyright cases in many years, which rescued the $60 billion U.S. market for imported goods manufactured abroad.
  • Successfully defended Carnegie Mellon University on appeal in a highly-publicized, long-running dispute concerning patents about reading data from computer hard drives. This set the stage for an eventual settlement, including a $750 million payment to CMU.
  • Obtained an important victory for DJL Mortgage Capital, a Credit Suisse affiliate, in a high-stakes residential mortgage-backed securities case worth nearly $1 billion in the Supreme Court of the State of New York, Appellate Division, First Judicial Department.
  • Persuaded the Second Circuit to overturn a liability finding against the only individual targeted who had been ordered to pay a $1 million civil penalty in connection with the “Hustle” mortgage program.
  • Successfully represented DISH Network challenging an infringement finding that yielded $400 million in damages and a life-threatening injunction requiring DISH to turn off DVR functionality for millions of customers. Additionally, on behalf of DISH and DIRECTV, prevailed in a constitutional challenge under the dormant Commerce Clause to a Florida statute imposing higher taxes on satellite TV providers than cable companies. We also argued related issues in the Utah Supreme Court.
  • Two major wins for Dow AgroSciences in a complex and high-stakes patent dispute involving herbicide tolerant plant genes built into one of the company's most important products. After the second merits victory for Dow and Orrick, Bayer was ordered to pay Dow nearly $6 million in attorneys' fees, a result Orrick preserved on appeal. We represent Dow in post-appeal proceedings seeking to overturn a $455 million damages award from an International Chamber of Commerce arbitration related to the same product.
  • A precedent-setting victory for Morgan Stanley concerning the extent to which federal securities law preempts state labor laws.