Practice Areas

Appellate

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Appellate

Lawyers from Cooper & Kirk have presented argument in the U.S. Supreme Court, every federal court of appeals, and numerous state supreme courts. While clients often hire us for the first time to represent them at the appellate stage, it is even more common for us to handle appeals in which we also served as trial counsel. Our appellate experience enables us to position cases from the beginning with an eye to maximizing a favorable outcome for our clients.

Issue
Ban on 10 Round Ammunition Magazines
Level of Court
US Court of Appeals - Third Circuit

Overview We represented New Jersey citizens challenging their state’s ban on ammunition magazines capable of carrying more than 10 rounds under the Second Amendment, the Takings Clause, and the Equal Protection Clause. The Third Circuit affirmed the denial of a preliminary injunction over a dissent by Judge Bibas.

Issue
Nationalization of Fannie Mae and Freddie Mac
Level of Court
United States Supreme Court

Overview We represent shareholders of Fannie Mae and Freddie Mac in a challenge to the U.S. Government’s nationalization of Fannie Mae and Freddie Mac. After the en banc Fifth Circuit agreed with our arguments that the Federal Housing Finance Agency (FHFA) exceeded its statutory authority and was unconstitutionally structured, the Supreme Court reviewed the case. The Supreme Court affirmed the Fifth Circuit's ruling that FHFA's structure violates the separation of powers and remanded the case for further proceedings on the appropriate remedy. Mr. Thompson presented argument for the shareholders in both the Fifth Circuit and the Supreme Court.

Issue
Challenge to DC's firearm carry laws
Level of Court
US Court of Appeals - DC Circuit

Overview We represented a resident of the District of Columbia and the Pink Pistols, an LGBT firearm rights group, in a Second Amendment challenge to the District of Columbia’s firearm carriage laws. We successfully urged the District Court to enter a preliminary injunction against the District’s carriage laws. On appeal, the D.C. Circuit entered a permanent injunction enjoining enforcement of the District’s law.

Issue
Challenge to Illinois Firearm Carriage Ban
Level of Court
US Court of Appeals - Seventh Circuit

Overview We represented a resident of Illinois in her challenge to that state’s ban on the carriage of a firearm outside the home. The Seventh Circuit held that the law was unconstitutional.

Issue
US Government Breach of Contract
Level of Court
US Court of Federal Claims

Overview After a three-week trial involving significant expert testimony, our client won a multimillion dollar verdict against the United States. The case involved complex damages issues relating to the cost of performance of a contract that the government breached. On appeal, the Federal Circuit awarded $33 million to our client.

Issue
Government Breach of Contract - $18 Million Award
Level of Court
US Court of Appeals - Federal Circuit

Overview After a two-week trial involving significant expert testimony, we won an $18 million verdict against the United States. The case involved quantification of mitigation costs resulting from the government’s breach of contract. The Federal Circuit affirmed the judgment.

Issue
Winstar Government Breach of Contract
Level of Court
US Court of Appeals - Federal Circuit

Overview We represented Coast Federal Savings Bank in a Winstar breach of contract suit against the United States arising from a 1989 Act of Congress that abrogated regulatory capital contracts between the Government and a number of thrifts, including Coast.

Issue
Duke Lacrosse Rape Hoax Scandal
Level of Court
US Court of Appeals - Fourth Circuit

Overview We represented 39 members of the Duke lacrosse team in connection with the rape hoax scandal. After extensive discovery and motions practice and an appeal, the case settled.

Issue
Challenge to Massachusetts's Firearm Carry Law's
Level of Court
US Court of Appeals - First Circuit

Overview We represented several citizens of Massachusetts in a challenge to the Commonwealth’s restrictions on carrying firearms in public, as well as Boston and Brookline’s local policies implementing them, under the Second Amendment.
Overview We represent victims of the 2013 and 2014 breaches of OPM’s data network, a catastrophic network security failure that exposed the private information of more than 21 million federal workers. We brought suit against the Government and its contractor on behalf of a putative class of injured federal workers, alleging claims under the Privacy Act, the Administrative Procedure Act, the Fair Credit Reporting Act, state consumer protection laws, and theories of negligence, breach of contract, and invasion of privacy. After the district court dismissed the case, the D.C. Circuit reversed and held that the case could move forward.

Issue
New York Ban on Certain Semi-Automatic Weapons
Level of Court
US Court of Appeals - Second Circuit

Overview We represented several plaintiffs who challenged under the Second Amendment New York's ban on so-called "assault weapons" -- certain semi-automatic rifles that possess various cosmetic and safety-enhancing features.

Issue
Texas Bail System
Level of Court
US Court of Appeals - Fifth Circuit

Overview We represented county judges in Harris County, TX, against a challenge to the County’s system for imposing bail for misdemeanor offenses. In the United States Court of Appeals for the Fifth Circuit, we challenged two iterations of a preliminary injunction entered by the U.S. District Court for the Southern District of Texas. The first panel vacated the injunction and remanded for a revision, and the second panel stayed the revised injunction pending appeal.

Issue
Oklahoma Firearm Laws
Level of Court
US Court of Appeals - Tenth Circuit

Overview We represented the State of Oklahoma in its successful defense of the constitutionality of Oklahoma laws holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on company property.

Issue
Challenge to a SEC APA Approval
Level of Court
US Court of Appeals - DC Circuit

Overview We represented petitioners challenging the SEC’s approval of the Options Clearing Corporation’s capitalization plan pursuant to the APA. The U.S. Court of Appeals for the D.C. Circuit held that the SEC abused its discretion, and on remand, the SEC vacated its earlier order and disapproved the OCC’s capitalization plan. This case culminated in a five-week trial arising from the government’s breach of contract. We sought lost profits that would have been generated by our client, absent the breach. At the conclusion of trial, the case settled on favorable terms.

Issue
Director of the DEA Sued by Mexican Narcos
Level of Court
US Court of Appeals - Ninth Circuit

Overview We successfully represented the former Director of the Drug Enforcement Administration (DEA) and three of his deputies in a lawsuit brought by a Mexican citizen who had previously been prosecuted for the 1985 murder of DEA Agent Enrique Camarena. The plaintiff alleged that his abduction from Mexico and arrest in the United States had violated international law because it occurred without the consent of Mexico. On appeal in the Ninth Circuit, we successfully argued that the individual defendants were immune from the claim that they had violated international law.

Issue
Constitutionality of Proposition 209
Level of Court
US Court of Appeals - Ninth Circuit

Overview We represented the intervenor Californians Against Discrimination and Preferences, Inc., in a case involving the constitutionality of Proposition 209 which prohibited the State of California from utilizing racial and gender preferences in education, employment, and contracting. The Ninth Circuit vacated the preliminary injunction entered by the district court and held that Proposition 209 was constitutional.

Issue
Delaware School Desegration
Level of Court
US Court of Appeals - Third Circuit

Overview On behalf of the Delaware House of Representatives Committee on Desegregation, we successfully urged the district court to declare the four school districts in the Wilmington, Delaware metropolitan area unitary, dissolve a busing order that had been in place since 1978, and finally dismiss a school desegregation case originally brought in 1956. On appeal, we successfully argued that the trial court’s decision should be affirmed in its entirety.

Issue
Defense of the Governor of Puerto Rico in alleged violation of the Interstate Commerce Clause
Level of Court
US Court of Appeals - DC Circuit

Overview We successfully represented Sila M. Calderon, Governor of the Commonwealth of Puerto Rico, in an action filed in U.S. District Court in Washington, D.C. by Coors. Coors’ lawsuit challenged Puerto Rico’s graduated beer tax regime as an alleged violation of the Interstate Commerce Clause of the United States Constitution. We successfully defended the Governor in the district court action. After full briefing before the U.S. Court of Appeals for the District of Columbia Circuit, Coors dismissed its appeal.

Issue
Oklahoma City School Desegregation
Level of Court
US Court of Appeals - Tenth Circuit

Overview We represented the Oklahoma City Board of Education in proceedings following remand from the United States Supreme Court in this school desegregation case that originally was filed over forty years ago. The district court granted our motion for summary judgment, declared the school district unitary, terminated court supervision over the Oklahoma City public schools, and dismissed the case. On appeal, the Tenth Circuit accepted our argument that the Oklahoma City schools had satisfied the standard established by the Supreme Court and affirmed the trial court’s decision to end the case.

Issue
Prozac Patent Enforcement
Level of Court
US Court of Appeals - Federal Circuit

Overview We represented Eli Lilly in its effort to retain its patent on the drug Prozac, one of the largest-selling drugs in the nation. A panel of the United States Court of Appeals for the Federal Circuit held that patent invalid. We were retained to assist in seeking rehearing, which was granted and to prepare a petition for certiorari in the Supreme Court.

Issue
Union's Appeal of Diversity Back Pay Award
Level of Court
US Court of Appeals - Second Circuit

Overview We represented Local 28 of the Sheet Metal Workers International in an appeal from a finding of contempt resulting from the union’s failure to meet a court-ordered minority membership goal and its failure to ensure a racially proportional distribution of hours worked among its members. We successfully argued that the district court’s substantial back pay award should be vacated.

Issue
Improper Assessment of Import Duties
Level of Court
US Court of Appeals - Federal Circuit

Overview We successfully represented Ford Motor Company in connection with its challenge to the United States Customs Service’s determination that $10 million in import duties and interest were properly assessed. The Federal Circuit held that the trial court’s verdict was clearly erroneous and that Ford was entitled to judgment.

Issue
State of Arizona Department of Corrections - Use of Funds
Level of Court
US Court of Appeals - Ninth Circuit

Overview We represented the State of Arizona and various state officials in their appeal of the district court’s decision striking down an Arizona statute which prohibited use of state funds for payment of special masters in prison reform litigation.

Issue
Redemption of US Savings Bonds
Level of Court
US Court of Appeals - Federal Circuit

Overview We represented the Arkansas State Auditor in an attempt to redeem numerous United States Savings Bonds that were last held by residents of Arkansas and that have matured long ago but have never been redeemed. The U.S. Court of Federal Claims entered partial summary judgment in our favor declaring Arkansas the valid owner of the bonds, but the Federal Circuit reversed.

Issue
State of Texas's Challenge to Firearm Sale Ban (Ages 18-20)
Level of Court
US Court of Appeals - Fifth Circuit

Overview We represented plantiffs in a Second Amendment challenge to a federal law banning licensed sale of handguns or handgun ammunition to law-abiding adults aged 18-20. Following the panel’s decision, we petitioned for rehearing en banc. In an 8-7 vote, the U.S. Court of Appeals for the Fifth Circuit decided not to rehear the case, but only over a vigorous dissent that agreed that 18- to 20-year-olds are protected by the Second Amendment and that the federal sales ban fails any level of heightened scrutiny.

Issue
Medicare Secondary Payer Statute
Level of Court
US Court of Appeals - Federal Circuit

Overview We represented New York Life Insurance Company in its challenge to the Health Care Finance Administration’s application of the Medicare Secondary Payer Statute to require New York Life to provide primary health care coverage to its independent agents. The court of appeals vacated the Court of Federal Claims ruling in favor of the agency’s interpretation and held that the statute did not apply to independent contractors during the relevant period.

Issue
Microsoft Anti-Competitive Behavior
Level of Court
US Court of Appeals - Fourth Circuit

Overview We represented Novell in a multi-billion-dollar antitrust lawsuit against Microsoft. Novell alleged that Microsoft engaged in anticompetitive behavior that prevented its software from being compatible with Windows and thus inflicted billions of dollars of harm on Novell. We appealed the district court’s dismissal of the suit, and the Fourth Circuit reversed.

Issue
State of Michigan Drug Rebate Program
Level of Court
US Court of Appeals - DC Circuit

Overview We successfully represented the State of Michigan in defending an initiative whereby it seeks rebates from drug manufacturers in order to control the cost of prescription drugs under its Medicaid and non-Medicaid programs. PhRMA brought suit against the Secretary of Health and Human Services in federal court, challenging his decision to approve the State’s initiative and requesting a preliminary injunction to halt implementation of it. We intervened, and the district court granted our motion for summary judgment. The D.C. Circuit affirmed.

Issue
Governor of Puerto Rico Elect Recount
Level of Court
US Court of Appeals - First Circuit

Overview We successfully represented the Governor-Elect of Puerto Rico in a recount dispute in connection with the 2004 elections. The opposing candidate for governor challenged the validity of several thousand ballots. Although the district court ruled in favor of the opposition candidate, the First Circuit reversed and ruled in favor of our client, who became the Commonwealth’s governor.

Issue
Challenge to the Satellite Home Viewer Improvement Act
Level of Court
US Court of Appeals - Fourth Circuit

Overview We represented the SBCA and member companies Echostar Communications Corp. and DirecTV, Inc. in a First Amendment challenge to the must-carry provisions of the Satellite Home Viewer Improvement Act of 1999, requiring satellite television carriers to carry all television stations in a local market if they choose to carry one station in that market.

Issue
Virginia Commonwealth University - Gender Discrimination
Level of Court
US Court of Appeals - Fourth Circuit

Overview On appeal before the en banc Fourth Circuit, we represented five male professors who charged Virginia Commonwealth University with engaging in impermissible gender discrimination in its salary structure. The court of appeals reversed the district court’s grant of summary judgment in favor of the defendant university.

Issue
Taking's Claim Jurisdiction
Level of Court
US Court of Appeals - Third Circuit

Overview We successfully represented Transcapital Financial Corporation and American Capital Corporation in an appeal of a decision regarding jurisdiction of the district court over takings claims after our clients’ wholly-owned thrift subsidiary was placed in receivership.

Issue
Challenge to Regulatory Capital Requirements
Level of Court
US Court of Appeals - Second Circuit

Overview We represented Transohio Savings Bank and other appellants in a suit seeking to prevent the Office of Thrift Supervision from calculating Transohio Savings Bank’s regulatory capital in a manner inconsistent with the plaintiffs’ rights under a contract executed with federal regulators when Transohio acquired two failed savings and loans.
Overview We represented Covad Communications Company (“Covad”) as an intervenor-defendant seeking to defend the validity of FCC rulings challenged by the nation’s largest local telephone companies and their trade association. We were engaged shortly after the D.C. Circuit Court of Appeals ruled in favor of the plaintiffs’ challenge. The decision raises a number of important questions regarding the FCC’s discretion to issue rules implementing the requirements of the Telecommunications Act of 1996.

Issue
State of Hawaii / Title II ADA
Level of Court
US Court of Appeals - Ninth Circuit

Overview We represented the State of Hawaii in connection with its assertion of sovereign immunity, arising from the Eleventh Amendment and related constitutional doctrines, against suits brought under Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973. In a 2-1 decision, the court of appeals rejected Hawaii’s assertion of sovereign immunity on the basis of a decision reached by another Ninth Circuit panel after oral argument.

Issue
Government Breach of Contract - B24 Bombers / Environmental Cleanup
Level of Court
US Court of Appeals - Federal Circuit

Overview We successfully represented Ford Motor Company in a breach of contract suit against the United States arising from a World War II contract for the manufacture of B-24 Liberation Bombers. Ford sought to recover the environmental cleanup costs it has incurred in connection with Ford’s performance of the cost-plus-a-fixed-fee contract. The Federal Circuit reversed the trial court and ruled in Ford’s favor.

Issue
Napster Copyright Infringement
Level of Court
US Court of Appeals - Ninth Circuit

Overview We served as co-counsel to the Recording Industry Association of America in its copyright infringement suit against Napster. The Ninth Circuit upheld a preliminary injunction based on our clients’ claims of vicarious and contributory copyright infringement.

Issue
Class Action - Sears' Bankruptcy Collection Procedures
Level of Court
US Court of Appeals - Fifth Circuit

Overview We represented a group of plaintiffs in the Fifth Circuit in a class action lawsuit against Sears, challenging Sears’ bankruptcy collection procedures as contrary to numerous federal laws. On remand, the case settled.

Issue
Federal Claims Act - Damages
Level of Court
United States Supreme Court

Overview We filed an amicus brief successfully urging the Supreme Court to hold that the False Claims Act allows suits against cities, counties, and other local government entities. As urged in our brief, the Court unanimously rejected the position — previously embraced by the Court itself, and accepted by all of the other parties and amici in the case, including the Solicitor General — that False Claimse Act treble damages are punitive in nature. The Court held that treble damages are entirely remedial and therefore that doctrines against imposing punitive damages on governmental bodies are irrelevant. See 538 U.S. at 129-34.

Issue
Contesting DOT Airline Route Awards
Level of Court
US Court of Appeals - DC Circuit

Overview We represented Delta Airlines in contesting a decision by the Department of Transportation to award two international airline routes to American Airlines.

Issue
Rockford Illinois School Desegregation
Level of Court
US Court of Appeals - Seventh Circuit

Overview We represented the Rockford, Illinois Board of Education in this school desegregation case. We had asked the district court to declare the school district unitary, vacate the desegregation decree, and dismiss the case. The trial court held that the school district was not unitary, and ruled that the busing order must remain in place for several additional years. The court of appeals reversed and remanded with instructions that the district court grant all of the relief sought by our client.
Overview We represented the International Association of Sheet Metal Workers in connection with its efforts to reaffiliate with a local union. The court of appeals held that the district court had no authority to prevent the reaffiliation in the absence of any evidence of a racially-discriminatory motive.
Overview We successfully represented the Legal Services Corporation (“LSC”) against a statutory and constitutional challenge to a LSC regulation limiting the involvement of LSC grantees in specified political redistricting activities.

Issue
Records Withheld by the FAA
Level of Court
US Court of Appeals - Third Circuit

Overview We represented United Technology’s Pratt & Whitney division in appealing the district court’s decision to uphold the FAA’s determination to withhold records requested pursuant to the Freedom of Information Act.