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

  • Google Inc. v. Oracle America, Inc: In a case called the “World Series of IP cases,” Orrick’s appellate team has secured two stunning rulings for Oracle in its 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. Orrick’s appellate team scored their next major victory when the Federal Circuit overturned the 2016 jury verdict and held Google’s copying not fair use a matter of law. Orrick then successfully defeated Google’s effort to seek rehearing, which was made more difficult by the fact that numerous stakeholders filed briefs supporting Google. This matter is currently pending at the Supreme Court.
  • Pinter-Brown v. Regents of the University of California: Successfully represented the University of California at Los Angeles in an age discrimination and retaliation lawsuit. A California state appeals court overturned a $13 million jury verdict against UCLA, finding the 2018 trial was marred by prejudicial errors. In a published decision, a unanimous Second District Court of Appeals panel found the “errors constituted a miscarriage of justice and created an atmosphere in which UCLA did not receive a fair trial.”
  • Lazare Kaplan Int'l v. KBC Bank: Brought an end to long-running litigation against client KBC Bank and the global diamond company Lazare Kaplan. Lazare alleged that KBC Bank was part of an international conspiracy to steal hundreds of millions of dollars of diamonds, and cash proceeds from diamond sales, and sought damages of $1.5 billion. We persuaded the Second Circuit to affirm dismissal of Lazare’s claims on the grounds that the claims arose under the credit and banking relationship between Lazare and Bank and thus must be litigated in Belgium under a binding forum-selection clause.
  • DISH Network v. National Labor Relations Board: Successfully represented DISH in a petition for review of an adverse NLRB order finding DISH liable for an unfair labor practice.
  • Regents of the Univ. of Minn. v. Ericsson Inc.: Obtained a precedent-setting win for Ericsson in a high-profile and high-value patent dispute before the Federal Circuit. After the University of Minnesota sued various Ericsson customers for patent infringement, Ericsson invoked an important statutory procedure that allows the Patent Office to re-evaluate patents it has already issued. The University asserted that it was not required to participate in this Patent Office process. Emphasizing that the University is part the State, the University argued that all States have sovereign authority to decline to participate in Federal litigation. The Federal Circuit rejected the University’s argument. Ericsson convincingly explained that sovereign immunity does not apply to the new Patent Office procedures.
  • Moussouris v. Microsoft: Represented Microsoft in a massive high-profile employment discrimination class action. Our team defeated class certification in the district court and persuaded the trial court that Microsoft’s pay and promotion decisions are highly individualized, and therefore cannot be resolved on a class wide basis. The employees appealed to the Ninth Circuit.
  • Oracle v. U.S. Dep’t of Labor: Led a team that brought a cutting-edge lawsuit against the Department of Labor that alleged that the Department’s administrative tribunals for prosecuting, adjudicating, and remediating claims of classwide employment discrimination against government contractors are unconstitutional because they are not authorized by Congress, exceed the President’s authorization, violate the nondelegation doctrine, and are contrary to statute. The case has attracted nationwide attention with labor unions, civil rights groups, nearly 20 states, the Chamber of Commerce, and former government officials filing briefs. The parties’ dueling motions for summary judgment are fully briefed.
  • Huang v. Twitter: Successfully represented Twitter in one of the most closely-watched gender bias cases in the tech industry. The California Court of Appeal upheld a lower court ruling that found the plaintiff in Huang v. Twitter failed to establish a common factual predicate for the case to proceed as a class action under state law.
  • Plastic Omnium Advanced Innovation and Research v. Donghee America, Inc.: Obtained a series of victories for Donghee in a multi-front patent war over Donghee’s ground-breaking automotive fuel tanks. Its competitor Plastic Omnium claimed that Donghee’s manufacturing process infringes some eight different patents, seeking tens of millions of dollars. Orrick convinced Plastic Omnium to drop multiple patents; convinced the district court to hold as a matter of law that Donghee doesn’t infringe the remaining patents; and convinced the PTAB to cancel many of Plastic Omnium’s patent claims outright. On appeal, Plastic Omnium dropped one appeal, is settling another, and in a third, the Federal Circuit affirmed the district court’s decision and rejected Plastic Omnium’s patent infringement claims, leaving Donghee free to continue using its novel technology.
  • Alaska Electrical Pension Fund v. McHenry: Successfully represented the former CFO of Hanger, Inc., the leading provider of orthotic and prosthetic patient care in the United States, in obtaining the dismissal of a securities class action and defending that ruling on appeal to the Fifth Circuit. A unanimous Fifth Circuit panel sided with our arguments, but only after we successfully convinced the panel to reconsider its own earlier ruling in plaintiffs’ favor.
  • Idenix Pharmaceuticals LLC et al v. Gilead Sciences Inc.: In this blockbuster patent case, Orrick helped persuade a federal district court to wipe out a $2.54 billion damages verdict – the largest patent verdict in history – and then defended that win on appeal. Following a long running patent dispute and trial over Gilead’s blockbuster Hepatitis C drugs, a jury rejected Gilead’s argument that Idenix’s patent was invalid and awarded Idenix $2.54 billion. The Orrick team worked to persuade the district judge to grant Gilead’s motion for judgment as a matter of law because Idenix’s patent was invalid as a matter of law, leading the court to wipe out the jury’s damages award. Orrick took the lead on appeal, where it persuaded the Federal Circuit to affirm the judgement of lack of enablement, and additionally to order judgment as a matter of law that Idenix’s patents also lacked written description.
  • In re City of Stockton: Won a major constitutional issue of first impression in the City of Stockton’s Chapter 9 bankruptcy. Also, successfully defended confirmation order in the Ninth Circuit Bankruptcy Appellate Panel.
  • In re Ocean Rig UDW Inc.: Successfully persuaded Second Circuit to dismiss shareholder’s appellate challenges to Ocean Rig UDW, Inc.’s $3.7 billion cross-border restructuring.
  • United States v. Microsoft Corporation: 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.
  • Byrd v. United States: In a unanimous win, the U.S. Supreme Court overruled the court of appeals and held that a violation of a rental-car contract, such as by driving a car even though not listed as an “authorized driver,” does not prevent a person from invoking Fourth Amendment rights against searches of the locked trunk of a car. The ruling is significant precedent for the protection of Fourth Amendment rights.
  • City of Hays v. Vogt: Persuaded the Supreme Court at oral argument to dismiss the petition as improvidently granted. This was a victory for our client, Officer Vogt, who was then free to pursue his civil rights claim on remand.
  • Hughes v. United States: 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.
  • Lynch v. Dimaya: Lead counsel in an immigration case affecting thousands of deportations a year. Striking a federal law as unconstitutionally vague, the Court held that deportations are subject to the same clarity requirement as criminal cases. After the Court deadlocked, 4-4, we persuaded the newly seated Justice Gorsuch to side with the Court’s liberal wing, for a 5-4 win.
  • Twentieth Century Fox Film Corp. v. Netflix: Successfully represented Netflix in a headline-grabbing battle over alleged employee poaching and the enforceability of Fox's employment contracts.
  • Mentor Graphics Corp. v. EVE-USA, Inc.; Synopsys, Inc. v. Lee; Synopsys, Inc. v. Mentor Graphics Corp.; Mentor Graphics Corp. v. EVE-USA, Inc.; Mentor Graphics Corp. v. Lee: Represent Synopsys in multiple interrelated appeals in what The Recorder has called “the holy patent war over chip design software.” The dispute involves six different patent appeals to the Federal Circuit, with Orrick taking the lead in five, and implicate numerous cutting-edge issues of patent law, including critical rules governing the new system for challenging patents, how to calculate certain patent damages, and who may challenge the validity of a patent.
  • Kirtsaeng v. John Wiley & Sons, Inc.: 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. Secured a decisive 6-3 victory in persuading the Supreme Court that the “first sale doctrine” applies to copies of a copyrighted work lawfully made abroad, despite the Court’s 4-4 split on the same issue just three years earlier.
  • Carnegie Mellon Univ. v. Marvell Tech. Grp. Ltd.: Defended Carnegie Mellon University in a highly publicized appeal of CMU’s $1.5 billion patent infringement judgment against Marvell Technology. Orrick handled the exceedingly complex appeal in the Federal Circuit, preserving the liability ruling and fending off some of the most serious challenges to damages—all leading to a $750 million settlement for our client.