Appellate Litigation

Davis Polk has a long track record of appearing before the federal Courts of Appeals and state appellate courts throughout the United States. Our lawyers have extensive experience arguing on a broad range of issues and many are former appellate law clerks, including former clerks to U.S. Supreme Court Justices. 

We regularly handle appellate matters arising from work that we performed at the trial level and are often asked to take on appeals with respect to matters handled by other law firms in a lower court. We have also represented numerous clients as counsel of record in the U.S. Supreme Court both in cases accepted for decisions on the merits and in connection with petitions for certiorari and oppositions to petitions filed by other parties. 

Because of our substantive knowledge and deep experience, we routinely prepare amicus briefs in important cases pending in the U.S. Supreme Court or in other appellate courts to address legal issues in which our clients have a vested interest.

Notable Matters

  • Aetna. We represented Aetna Inc. and its subsidiaries in a patent infringement suit brought by HealthTrio, LLC. The court granted Aetna’s motion for judgment on the pleadings and found all 497 patent claims contained in the 10 asserted patents invalid as drawn to ineligible subject matter. The United States Court of Appeals for the Federal Circuit affirmed the order, bringing to an end a multiyear litigation that targeted a significant portion of Aetna’s health care informatics business.

  • NBCU. We represented NBCUniversal in connection with an antitrust suit filed against several major broadcasting stations and athletic conferences, including CBS, ESPN, FOX and NBC, challenging NCAA rules regarding compensation for the airing of games by television stations. A Tennessee federal judge dismissed the case and the Sixth Circuit’s three judge panel upheld the lower court’s decision.

  • Facebook. We obtained the successful dismissal of claims brought by Facebook shareholders in more than 30 class actions seeking a disgorgement of over $100 million. The complaints principally allege that Facebook’s registration statement and prospectus for the IPO were materially false and misleading. The Second Circuit Court, after considering an amicus submission from the Securities and Exchange Commission requested following oral argument, agreed with our argument on behalf of underwriter defendants that they were not “insiders” subject to disgorgement of short-swing trading profits.

  • AIR Worldwide Corporation and ISO Services, Inc. We successfully represented AIR Worldwide and ISA on appeal in a breach of contract lawsuit. The Second Circuit affirmed the dismissal of breach of contract claims asserted by a special purpose vehicle created to facilitate a reinsurance product involving a sponsoring insurer and buyers of “catastrophe bonds.”

  • Comcast. We won a major victory for Comcast in the Ninth Circuit in a putative nationwide class action brought against Comcast and other major cable and direct broadcast satellite companies challenging the practice of distributing television channels to consumers in “bundled tiers” as opposed to on an “a la carte” basis, successfully arguing that an antitrust complaint must allege an injury to competition, which requires either an agreement among or foreclosure of competitors.

  • Morgan Stanley. After years of litigation, New York’s highest court dismissed as time-barred a multimillion dollar case against Morgan Stanley brought by its former client, IDT Corporation, which charged Morgan Stanley with tortious interference with a contract and misusing confidential business information. Following the Court of Appeals decision, IDT attempted to replead; the New York Supreme Court, Appellate Division ultimately affirmed the lower court’s dismissal of the amended claims. 

  • PwC. We achieved an appellate victory for PricewaterhouseCoopers LLP in the Ninth Circuit, which affirmed the dismissal of claims that PwC violated federal and California state laws in connection with alleged backdating of stock options by its audit client, Rambus, Inc.