Wiley Rein’s Appellate Group stands apart for its ability to counsel and advocate on behalf of major corporations and entire industries as they confront complex statutory and constitutional issues, whether arising on appeal or at any stage of litigation. Leveraging the knowledge of attorneys from nearly two dozen practice areas, we are also well known for handling difficult and sensitive regulatory and compliance matters that often lead to litigation or direct appellate review.
Described by the The Legal 500 US as “hugely effective,” Wiley Rein’s Appellate Group looks at a legal problem creatively and incisively to craft, in both briefs and oral arguments, the most persuasive presentation of the client’s position. Our “elite cadre of appellate lawyers” (Legal Times) frequently is called upon for “bet the company case[s]” to reverse a lower court, regulatory, or legislative defeat, as well as to represent the interests of entire industries as lead counsel for coalitions in groundbreaking cases involving the interpretation and application of federal law. In addition, we are at times retained to take over cases on appeal, in order to take a fresh look at the legal issues and develop new approaches that can make the difference on appeal.
The Appellate Group is headed by Andrew G. McBride, former law clerk to Supreme Court of the United States Justice Sandra Day O’Connor and Judge Robert H. Bork of the U.S. Court of Appeals for the D.C. Circuit.
Mr. McBride regularly is recognized as a “Leading Lawyer” in Chambers USA for his “wealth of trial, appellate and Supreme Court experience” (2009) and for his “skills as a litigator” (2011). The Legal 500 US commends him for “leading many of the firm’s high-stakes representations in trial, appellate and Supreme Court cases,” and notes that clients praise him as a litigator who is “precise and effective” and who “matches understanding of the regulatory with a tenacity in federal court.” He has also been listed as one of “The Best Lawyers in America” in the area of Appellate Law.
At the core of Wiley Rein’s appellate capabilities is a deep bench of appellate experts and former judicial clerks. In addition to firm founder and name partner Bert W. Rein, who served as a law clerk to Justice John M. Harlan (1966-1967), and who provides guidance and expertise to the Group, our litigators include more than 50 attorneys who have served as clerks in federal and state courts across the country and former Supreme Court clerks, among them:
- John E. Barry (Chief Justice Warren E. Burger (retired) and Justice Anthony M. Kennedy (1991-1992), and Chief Judge Levin H. Campbell, Chief Judge of the U.S. Court of Appeals for the First Circuit (1985-1986));
- William S. Consovoy (Justice Clarence Thomas (2008-2009) and Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit (2003-2004));
- Claire J. Evans (Justice Clarence Thomas (2008-2009), Chief Judge David B. Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit (2007-2008), Judge Michael Chertoff of the U.S. Court of Appeals for the Third Circuit (2004-2005), and Judge Jerome B. Simandle, U.S. District Court for the District of New Jersey (2002-2004)); and
- Numerous other lawyers who have clerked on the federal Courts of Appeal across the country, including associates who have recently served as law clerks on the District of Columbia, Fourth, Fifth, Sixth, Ninth, and Tenth circuits.
By placing discrete legal issues and controversies into the context of a client’s national appellate strategy, Wiley Rein is able to provide its clients with sophisticated advice about when and where to initiate litigation or vigorously defend legal principles that are critical to a company or industry. The Wiley Rein Appellate Group also is able to deploy the firm’s comprehensive expertise in government policy-making to assist clients in securing agency support for their agenda, for example by convincing an agency to file an amicus brief or in seeking regulatory relief in lieu of judicial action. Because the Appellate Group is focused on possible eventual appellate review and is well equipped to handle any matter from beginning to end, we can provide realistic advice and craft a comprehensive legal approach to the problems our clients confront.
In building our reputation for handling cases of national significance and representing the interests of entire industries, our Team continues to be intimately involved in the litigation of myriad questions of first impression and national importance across the legal spectrum. Though varied, these matters frequently involve difficult questions in five key areas in which we have developed significant expertise:
- Preemption: Our Appellate Group regularly deploys the full spectrum of federal preemption arguments on behalf of diverse clients in a variety of substantive legal areas. We have used preemption strategically to invalidate laws and regulations, securing important precedents from myriad appellate courts.
- Constitutional and Administrative Law: Our appellate matters often involve complex questions of constitutional and administrative law. In addition to our significant federal preemption experience, we regularly litigate First Amendment and Fifth Amendment issues in challenges to federal and state regulations or in response to class actions.
- Class Actions: Our Team successfully defends class actions in a variety of industries, often using creative legal theories to defeat the lawsuit at the motion-to-dismiss stage, yielding victories that we defend on appeal.
- Arbitration: Wiley Rein is at the fore of appellate litigation over the enforceability of arbitration clauses, crafting, and litigating theories of federal preemption that seek to ensure the enforceability of these important contractual provisions.
- Insurance: Our Insurance Appellate Group also regularly represents both individual insurers and leading industry trade groups (including the American Insurance Association (AIA), the Complex Insurance Claims Litigation Association (CICLA), the National Association of Mutual Insurance Companies (NAMIC), and the Property Casualty Insurers Association of America (PCI)) in prominent appellate cases in both federal and state courts throughout the United States, including the Supreme Court of the United States.
In keeping with the firm’s interdisciplinary approach, our appellate counsel partner with recognized subject matter experts in nearly two dozen areas of law and across industries to provide briefing and oral argument in every appellate setting, including at the Supreme Court of the United States and in every federal circuit, as well as numerous state supreme courts. The Legal 500 US notes that Wiley Rein’s “fusion of a highly rated regulatory group with a contingency of litigation expertise” is a strategy that “manifests itself in the flexibility of its lawyers and the firm’s prolific record of success in contentious matters.”
The firm’s “tendency to complement a strong suit in commercial litigation with experience across a wide array of more esoteric cases” (The Legal 500 US) is reflected in the sampling of recent Supreme Court and other significant appellate cases below.
Supreme Court of the United States Matters
- Wyeth v. Levine, successfully petitioned the Supreme Court for a writ of certiorari, arguing that U.S. Food and Drug Administration (FDA) approval of prescription drug labeling preempts state-law claims that would require different warnings.
- Mylan, Inc. v. Daiichi Sankyo Co., representing the Generic Pharmaceutical Association (GPhA) as amicus in support of a petition for certiorari in a patent dispute case. The brief seeks the Court’s clarification of its definition for “obviousness,” a critically important issue when determining the validity of a patent.
- Cellco Partnership v. Litman, representing petitioner seeking certiorari in Federal Arbitration Act preemption case attempting to vindicate contractual right to bilateral arbitration in consumer agreements.
- American Electric Power Co. v. Connecticut, representing amicus curiae at the certiorari and merits stage in first test of federal court jurisdiction over global warming nuisance suits seeking judicial order reducing energy companies’ carbon dioxide emissions. Amicus argues that the case is barred by the standing and political question doctrines.
- Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC), represented religious tribunal experts seeking recognition of the First Amendment rights of religious organizations in one of the most important religious liberties cases in decades. Brief was recognized as Brief of the Week by The National Law Journal.
- US Airways, Inc. v. McCutchen, successfully represented amici curiae in persuading the Supreme Court to reject an effort to use equitable principles to override the clear terms of an employee benefit plan under the Employee Retirement Income Security Act (ERISA).
- Wine Country Gift Baskets.com v. Steen, representing coalition of economists and former Federal Trade Commission (FTC) officials in Commerce Clause case challenging state laws that discriminate against out-of-state wine retailers.
- Research in Motion Ltd. v. NTP, Inc., represented respondent in successful opposition to certiorari in high-profile patent infringement matter.
- District of Columbia v. Heller, represented retired military officers as amicus (in support of the successful respondent) in landmark case dealing with the Second Amendment right to possess a firearm for private use.
- Rumsfeld v. Forum for Academic and Institutional Rights, represented law professors and law students (amici) in support of petitioners in Supreme Court’s favorable, unanimous ruling that the Solomon Amendment is constitutional.
- Free Enterprise Fund v. PCAOB, represented Washington Legal Foundation as amicus in the successful Supreme Court challenge to the Sarbanes-Oxley’s Public Company Accounting Oversight Board (PCAOB) as unconstitutional under separation of powers doctrine.
- AT&T Mobility v. Concepcion, represented coalition of law professors defending contractual right to choose bilateral arbitration.
- VFJ Ventures, Inc. v. Surtees, filed an amicus curiae brief in support of the petitioner on behalf of the U.S. Chamber of Commerce, the world’s largest business federation.
- Northwest Austin Municipal Utility District Number One v. Holder, represented amicus in successful support of the utility district in case examining the constitutionality of part of the Voting Rights Act.
- LaRue v. DeWolff, Boberg & Associates, Inc., provided representation in a case in which the Supreme Court held that an employee can sue his employer for alleged mismanagement of his 401(k) pension plan.
- FEC v. Colorado Republican Federal Campaign Committee, represented Colorado political party in an expansive First Amendment challenge to Federal Election Committee (FEC) regulation of coordinated campaign expenditures.
- Philip Morris et al v. U.S., represented Washington Legal Foundation and the National Association of Manufacturers (amici) in case raising important First Amendment issues under federal Racketeer Influenced and Corrupt Organization Act (RICO) statutes.
- Lofton-Taylor v. Verizon Wireless, represented respondent in successfully opposing certiorari in case involving federal preemption under the Fair Credit Reporting Act.
- Parents Involved in Community Schools v. Seattle School District No. 1, represented amicus in support of petitioners, with whom the Supreme Court ruled in favor in this matter involving racial integration in the U.S. public school system.
- FDA v. Brown & Williamson Tobacco Corp., represented defendant in successful challenge to FDA jurisdiction over tobacco products under the Food, Drug, and Cosmetic Act.
- Winter v. Natural Resources Defense Council, Inc., obtained favorable Supreme Court ruling in representation of amicus in matter concerning the Navy’s use of “mid-frequency active” sonar during integrated training exercises in the waters off southern California.
- United States v. Weatherhead, represented Freedom of Information Act petitioner in Supreme Court case that resulted in government disclosure of the document at issue and substantial award of attorney’s fees.
- Riley v. Kennedy, represented amicus (the Project on Fair Representation) in support of state appellant in a state election law matter, with the Supreme Court ruling in favor of the appellant.
- Crawford v. Marion County Election Board, represented amicus in support of state respondents in favorable ruling on matter involving photo I.D. requirements for voting.
- Bush v. Vera, represented private plaintiffs in successful constitutional challenge to Texas congressional redistricting plan.
- ALS Scan, Incorporated v. Digital Service Consultants, Inc., represented respondent in successfully opposing petition for certiorari in technology-copyright matter.
- Warner-Lambert Company LLC v. Kent, represented amicus in successfully obtaining a writ of certiorari in suit involving Warner-Lambert’s diabetes drug.
- Buckman Co. v. Plaintiffs’ Legal Committee, filed amicus curiae brief on behalf of the Pharmaceutical Research and Manufacturers Association (PhRMA) in successful effort to establish that state law “fraud on the FDA” claims are preempted by federal law.
- Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., represented amicus in support of petitioner, obtaining a favorable ruling from the Supreme Court in this noted patent law case.
- Dickerson v. United States, filed amicus curiae brief on behalf of former Attorneys General of the United States in a case addressing constitutional status of Miranda warnings.
Federal Appellate Courts
- Verizon v. FCC, representing Verizon in the lead challenge to the FCC’s order formally adopting net neutrality rules in response to Comcast v. FCC, a favorable decision obtained earlier by Wiley Rein on behalf of Comcast.
- Cellco Partnership v. FCC, representing Verizon in challenge to the FCC’s order adopting data roaming rules, arguing, among other things, that the FCC exceeded its statutory authority in promulgating these regulations.
- Comcast v. FCC, successfully represented Comcast in challenging the FCC order that Comcast’s broadband network management practices (relating to peer-to-peer file sharing traffic) violated the principles of the FCC’s Internet Policy Statement.
- Comcast v. FCC, represented Comcast in reversing and vacating the FCC’s ownership cap for cable operators, which limited them to serving only 30% of the nation’s multi-channel video subscribers.
- Coors Brewing Co. v. Mendez-Torres, obtained unanimous reversal of a Puerto Rico federal district court’s dismissal of client Coors’ challenge to the Commonwealth’s beer tax scheme, allowing for the first federal court review of the constitutionality of the beer tax scheme in its 30-year history.
- ACLU v. NSA, represented amicus, the Foundation for the Defense of Democracies, in support of appellants’ successful challenge to an Eastern District of Michigan decision regarding the Terrorist Surveillance Program (TSP).
- Comer v. Murphy Oil, represented the Cato Institute as amicus before en banc Fifth Circuit addressing standing and the political question doctrine in case seeking to impose liability on oil and gas industries for their alleged contributions to global warming.
- Natural Resources Defense Council v. EPA, provided representation in matter challenging the Environmental Protection Agency's (EPA) 2007 rule governing ongoing usage of the insecticide methyl bromide.
- (Multiple cases), in four separate appeals, the Courts of Appeals of Colorado, Wisconsin, the District of Columbia, and the U.S. Court of Appeals for the Sixth Circuit upheld rulings by lower courts dismissing class action lawsuits brought against client Molson Coors alleging that the alcoholic beverage industry’s advertisements were to blame for underage drinking.
- Public Citizen v. U.S. Dist. Court for Dist. of Columbia, represented amicus in support of appellee in case regarding whether the Deficit Reduction Act of 2005 satisfied the Bicameralism Clause; the court ruled in favor of the appellee.
- Medical Center Pharmacy v. Gonzales, provided representation in a case dealing with the FDA authority to regulate compounded drug products.
- Teva Pharmaceutical Industries Ltd. v. Crawford, argued on behalf of appellee Pfizer, with the court affirming summary judgment in favor of Pfizer in this FDA-related case.
- Winter v. Bassett, successfully represented client in removing an unfair business practices lawsuit to federal court and then securing dismissal of the suit on preemption grounds.
- Turicentro, S.A. v. American Airlines Inc., argued on behalf of appellee the International Air Transport Association (IATA), with the court ruling in favor of IATA, affirming grant of summary judgment.
- Washington Legal Foundation v. Henney, argued on behalf of appellee, succeeding in forcing the FDA to alter its position on key First Amendment issues.
- Representing Clear Channel and CBS in pending Third Circuit challenge to the FCC’s most recent media ownership decision, Prometheus Radio Project v. FCC.
State Appellate Courts
- Pfizer, Inc. v. Galfano, represented U.S. Chamber of Commerce as amici on behalf of petitioner Pfizer in successful appeal of a lower court order certifying a high-profile class action filed by plaintiff.
Additional information on our appellate work for the insurance industry is available via the following link.
Conflicting Eleventh Circuit Decisions Underscore the Perils of the Telephone Consumer Protection Act (TCPA)
By Scott D. Delacourt, Thomas R. McCarthy and Michael Connolly
July 14, 2014
Harris v. Quinn symposium: A quiet blockbuster?
By Thomas R. McCarthy and Samuel B. Gedge
July 2, 2014 | SCOTUSblog
FCC Pivot to Regulating Broadband Under Title II? Not So Fast
By Bennett L. Ross and Brett A. Shumate
June 23, 2014 | Bloomberg BNA's Daily Report for Executives
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