Appellate Division Review
Kevin Fong Speaks to Law360 about His Appellate Experience
Pillsbury Scores Big with 56 Tier 1 Rankings in 2011 U.S. News – Best Lawyers Survey
No Excuses: Appeals Court Says DOE Can't Claim "Unavoidable Delay" to Escape Liability for Failing to Take Utilities' Spent Nuclear Fuel
Advice from More Experts: More Successful Strategies for Winning Commercial Cases in New York State Courts
The First District Appellate Symposium presented by the Appellate Practice Section of the Bar Association of San Francisco (BASF)
Kevin M. Fong
Pillsbury's Appellate practice is nationally ranked by 2010 Chambers USA, a leading independent guide that interviews clients to compile its rankings.Pillsbury's Appellate team has briefed and argued hundreds of cases in state and federal courts throughout the country, including precedent-setting cases with major impact on our clients' businesses. Clients, peers and media rankings consistently recognize our excellence in brief-writing, analysis and advocacy. We often work with a client's existing litigation counsel to provide strategic advice on appellate issues before, during and after trial.
Our practice includes lawyers who are nationally known for their appellate experience in specific substantive areas—including antitrust, energy, employee benefits, intellectual property, securities litigation and tax—as well as appellate lawyers recognized as leaders in their respective states (including California, New York and the District of Columbia) and circuits (including the Second, Ninth, Federal and D.C. Circuits). We are frequently called upon to represent industry interests in major cases through amicus briefs in appellate courts, including the U.S. Supreme Court.
Our team includes accomplished trial attorneys, former law school professors, former appellate and Supreme Court clerks, and a former associate justice of the Appellate Division in the New York State Courts. We also have a former U.S. Assistant Attorney General who reviewed hundreds of briefs and memoranda for the Solicitor General and was responsible for the briefs and arguments in hundreds of matters before every federal Circuit and the Supreme Court.
What Sets Us Apart
US News & World Report and Best Lawyers have ranked our practice as a "National Tier 1" appellate practice. Several of our appellate lawyers have been ranked by Chambers USA, which has noted praise from our clients for bringing new and creative perspectives to cases and the "efficiency with which this is done." Our team members have been honored by other leading directories, including The Best Lawyers in America, Legal 500 and Guide to Leading U.S. Litigators.
Our legal arguments are comprehensively researched, logically developed, and simply and convincingly tailored for particular courts. To assist our clients, we can also conduct moot courts and review briefs prepared by other counsel. We follow the emerging trends that are important to our clients, often working within the multidisciplinary teams that Pillsbury builds around such issues.
In addition to traditional appellate advocacy, Pillsbury can provide your trial team with a valuable appellate perspective on questions of strategy and issue preservation. With proper care, a trial victory will withstand an appeal or a loss can be overturned. We review trial strategies and tactics to minimize wasted effort and maximize the likelihood of a favorable outcome. We also assist clients in coordinating national or multi-jurisdictional litigation, assuring that presentations and positions are consistent and matters are handled efficiently.
Recent Appellate Victories
Our clients have called upon our appellate lawyers to handle critical issues in a diverse range of areas—including constitutional law, employee benefits, tax, energy, environmental, finance, health care and intellectual property. Some of our representations in recent years include:
- Won a U.S. Supreme Court decision on the right of habeas corpus for persons detained at Guantanamo Bay.
- Submitted an amicus brief to the U.S. Supreme Court on behalf of the American Bar Association on the winning side of an important due process case.
- Wrote the amicus brief in the Second Circuit on behalf of the New York City Bar, in a successful challenge to New York State's curbs on advertising by lawyers.
- Won multiple victories for the U.S. nuclear power industry in the Federal, D.C. and Eleventh Circuits, in a $50 billion battle over the Department of Energy's failure to dispose of the nation's spent nuclear fuel.
- Convinced the D.C. Circuit to uphold a decision by the U.S. Department of Transportation allowing our client Virgin America permission to fly as a domestic airline.
- Represented Capitol Bancorp in a case challenging a share exchange offer for a bank. The Ninth Circuit affirmed in favor of our client in an opinion that is now routinely cited in other cases.
- In environmental cases heard by the Second and Eleventh Circuits, won decisions permitting the development of a new airport near Panama City, Florida.
- On behalf of three Chevron employee benefit plans, won Fifth Circuit affirmance of the company's procedures in deciding employee claims.
- In a case challenging local regulation of locomotive emissions, convinced the Ninth Circuit to uphold a lower court decision for our client, the American Association of Railroads—a decision hailed by a Los Angeles newspaper as "the biggest environmental victory in Southern California."
- Represented Stanley Black & Decker on alleged design patent infringement by one of its products. The Federal Circuit ruled in favor of our client, in a decision that garnered widespread attention throughout the patent law community.
- For the officers of a bankrupt real estate development company, won two successive Ninth Circuit appeals with our novel application of the Securities Litigation Uniform Standards Act.
- Represented a European financial institution in an appeal over a credit default swap contract; the Second Circuit reversed the district court and entered judgment for our client Société Générale.
- Won a ruling from the Third Circuit that guidance documents from the Nuclear Regulatory Commission are not reviewable by the courts because they are neither binding nor "final orders."
- Before the Ninth Circuit, successfully defended the directors and officers sued after a technology company's $30 billion stock collapse.
- Prevailed in two appearances before the Federal Circuit on behalf of Atlas Copco, an international machinery company that had been accused of patent infringement.
State Appellate Court Cases
- Won reversal from the New York Appellate Division for a financial institution against the demanded release of escrow funds that were held to protect our client from claims of patent infringement for use of a software application that was purchased from a trading management company.
- Represented a rural telephone company in appellate proceedings arising from a California Public Utilities Commission decision on disposition of proceeds from gain on sale of Rural Telephone Bank stock. The California Court of Appeal ruled in favor of our client, resulting in a recovery of more than $5 million, an amount equivalent to more than two years of net income for the company.
- Represented Dynegy in opposing challenges by environmental groups to Clean Water Act permits involving a cooling water system of the power plant, authorizing the modernization of a power plant located near wetlands in Monterey Bay, California. The California Supreme Court upheld decisions by the Court of Appeal and Monterey Superior Court in favor of our client.
- Represented two companies controlled by the prominent New York real estate developer Sheldon Solow in litigation involving mechanics' liens.
- Filed an amicus brief for the American Bankers Association in the New York Court of Appeals in a successful defense of the traditional role of indenture trustees.
- Won software licensing contract dispute for CA Technologies in which the Delaware Supreme Court affirmed the lower court's decision rejecting the opponent's $60 million damages claim.
- On behalf of a major energy company, challenged a U.S. government strategy of coercing privilege waivers from companies under investigation. The California Court of Appeal decision in favor of our client could benefit companies in many other states with similar laws.
- Obtained a favorable appellate decision for a major media company. The California Court of Appeal affirmed that a long-term lessee of commercial property that is assessed and that paid the real property taxes thereon has standing to seek a refund of such taxes.
- On behalf of natural gas wholesaler Dynegy, won dismissal of a potential class action based on state antitrust claims that was upheld by the Supreme Court of Tennessee.
- Won reversal of a tax ruling for a health care company that makes a medicine storage cabinet with a built-in computer programmed with medical information. The California Court of Appeal held that the application software was not subject to property taxation even if bundled with computer hardware.
- Represented Health Net in challenging the setting of Medicaid capitation rates. The California Court of Appeal held that freezing rates based on the state budget deficit constituted a breach of contract by the state and remanded the case for a proper determination of the rates.
- For AT&T, disposed of antitrust claims via summary judgment in a decision upheld by the California Court of Appeal.