Appellate Practice by wulinqing


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                                               Appellate Practice
Quinn Emanuel has an extensive nationwide appellate practice that focuses on briefing and arguing
significant cases before the United States Supreme Court, the federal courts of appeals (particularly
the Second, Ninth and Federal Circuits), as well as intermediate courts of appeal and high courts of
California, New York and other states. Our appellate experience spans all areas of our practice, from
copyright, patent, trademark and trade secret law to arbitration, bankruptcy, business tort, contract,
financial products, real estate and securities law. We have special expertise in appeals involving
criminal law and all aspects of constitutional law.

Our appellate practice is headed by Kathleen M. Sullivan, a professor at and former Dean of
Stanford Law School and one of the nation's most highly regarded appellate advocates. Recognized
by the National Law Journal as one of “The 100 Most Influential Lawyers in America,” by the Daily
Journal as one of “The 100 Most Influential Lawyers in California,” and by the Daily Journal as one
of "The 75 Top Women Litigators in California," Ms. Sullivan has argued numerous high profile
appeals before the United States Supreme Court, including a nationally prominent victory for the
direct shipment of wine from wineries to consumers in other states, as well as numerous federal and
state courts.

Ms. Sullivan's appellate team includes Daniel H. Bromberg, an experienced appellate attorney who
has argued in the U.S. Supreme Court and other federal and state courts of appeals; Susan R. Estrich,
a nationally renowned law professor at the University of Southern California and appellate attorney
who was the first woman president of the Harvard Law Review and clerked for Justice John Paul
Stevens; and Sanford I. Weisburst, who clerked for Justice Clarence Thomas and has briefed and
argued several appellate cases in federal and state court. Quinn Emanuel's lawyers also include
numerous other former U.S. Supreme Court and circuit court law clerks and Assistant U.S.
Attorneys who collectively have argued hundreds of successful federal and state appeals.


      We represented Shell Oil Company in an 8-1 victory in the U.S. Supreme Court in
       Burlington Northern & Santé Fe Railway v. United States, which held that Shell
       cannot be held liable as an “arranger” under CERCLA for merely shipping useful

      In Granholm v. Heald, our lawyers obtained a 5-4 victory in the U.S. Supreme Court
       on behalf of California vintners and Michigan consumers challenging state laws
       imposing discriminatory restrictions on interstate shipments of wine. The Court held
       that the Twenty-First Amendment does not give states license to interfere with the
       national market in a way that violates the Dormant Commerce Clause.
                                                 quinn emanuel urquhart & sullivan, llp

                      Los Angeles • New York • San Francisco • Silicon Valley • Chicago • Tokyo • London • Mannheim

                                           Prior results do not guarantee a similar outcome.
     We filed an amicus brief on behalf of the New York Stock Exchange and
      NASDAQ in Stoneridge Investment Partners, the U.S. Supreme Court decision
      rejecting judicially implied private rights of action against third-party vendors under
      the securities laws. The brief, which the Court expressly cited in its opinion, argued
      that allowing such "participant" liability would weaken the global competitiveness of
      the nation's capital markets by raising the cost of doing business with publicly traded

     Our appellate attorneys, working together with our deeply experienced patent
      attorneys, have filed amicus briefs supporting the prevailing position in nearly every
      recent patent case before the U.S. Supreme Court, including eBay v. MercExchange,
      KSR v. Teleflex, Labcorp v. Metabolite, and Quanta Computer v. L.G. Electronics.
      Our clients on these briefs, including Time Warner, AOL,, Viacom,
      Nokia, Google, Cisco, Xerox, IAC/Interactive, Infineon, Chevron, Shell, Visa,
      and Affymetrix, have thus been able to make sophisticated contributions to the high
      court's recent focus on patent law.



     We represented The Coca-Cola Company in the Eleventh Circuit, successfully
      defending the district court’s dismissal of a complaint asserting claims under the
      Alien Tort Statute and Torture Victims Protection Act arising out of violence
      committed by Colombian paramilitaries in and around the Colombian plants of The
      Coca-Cola Company’s Colombian bottling partners. In a lengthy, published
      decision, the Eleventh Circuit held that the plaintiffs had failed, under the Supreme
      Court’s decision on pleading standards in Ashcroft v. Iqbal, adequately to allege a
      link between the paramilitaries and the Colombian government; such a link is
      required to satisfy the state-action element of these statutes.

     We also represented The Coca-Cola Company in the Second Circuit, successfully
      defending the district court’s dismissal of a complaint asserting ATS and other
      claims under the forum non conveniens doctrine. The complaint concerned police
      action against union members that occurred in Istanbul, Turkey, allegedly at the
      behest of The Coca-Cola Company’s Turkish bottling partner. The Second Circuit
      affirmed the district court’s dismissal because, among other things, virtually all of
      the relevant evidence and witnesses were to be found in Turkey, and it would
      therefore be more convenient to litigate the case there.

     We represent Pfizer Inc. in the Supreme Court of the United States, where it is
      seeking review by certiorari petition of an adverse Second Circuit decision that
      sustained ATS claims against Pfizer arising out of a clinical drug trial that Pfizer
      conducted in Nigeria. The petition argues, among other things, that the Supreme
      Court should clarify confusion among the lower courts as to the sort of link that is
      required to satisfy the state-action element of an ATS claim. We successfully

       persuaded the Second Circuit to grant a stay of its mandate (thus staying further
       proceedings in the trial court) until the Supreme Court disposes of the case.


      We represent AIG in appeals on behalf of its reinsurance companies in both the
       Second and the Ninth Circuits, in one appeal challenging a $443 million arbitration
       award granted after an unusual secret hearing and one appeal challenging a verdict
       after bench trial concerning disputed reinsurance obligations.

      We represented Allegheny Energy before the Second Circuit, succeeding in
       overturning a $158 million judgment after bench trial for Merrill Lynch and
       reinstating $350 million in counterclaims by Allegheny in a complex commercial
       contract dispute involving acquisition of an energy trading business. On remand, we
       took over as trial counsel for Allegheny and secured a favorable settlement.

      We represented Mexico's Grupo Televisa, the largest media company in the
       Spanish-speaking world, in a case against Florida-based Telemundo for tortious
       interference with Televisa's exclusive agreement with one of Spanish-language
       television's biggest stars. In 2005, the U.S. District Court for the Southern District of
       Florida had granted summary judgment to Telemundo, holding that Televisa's claims
       were governed by Mexican law, which does not recognize the interference tort. We
       convinced an Eleventh Circuit panel to reverse unanimously in a decision with broad
       ramifications for the many Latin American companies that do business in Florida.

      We represented 212 Investment Partnership in a suit against an attorney who
       fraudulently preferred personal transactions above those of the partnership he
       represented. The trial court had dismissed claims against the attorney on statute of
       limitations grounds, and we convinced the New York Appellate Division to reverse
       and reinstate the claims.

      We represented AOL Time Warner in the securities litigation,
       successfully arguing at the district court, on appeal to the Ninth Circuit, and again on
       remand that Section 10(b) and Rule 10b-5 of the securities laws do not permit third-
       party "participant" liability--anticipating the successful outcome of the Stoneridge
       Investment Partners decision in the U.S. Supreme Court.

      We were asked by the Second Circuit to brief and present oral argument as amicus
       curiae on behalf of individual pro se debtors in a case involving an issue of first
       impression under the Bankruptcy Abuse Prevention and Consumer Protection Act of
       2005, providing the court with a counterweight to the analysis of the United States

      We represent a pioneer in the Internet industry in the Ninth Circuit in a challenge to
       an arbitration award imposing $20 million punitive damages award in an action
       concerning breach of fiduciary duty and conversion.


      We successfully defended Time Warner Entertainment and HBO against a $56
       million copyright infringement action alleging theft of the ideas for the television
       show "Six Feet Under." After we won summary judgment on the ground that any
       similarities to the plaintiff's screenplay were too abstract to be copyrightable, the
       Ninth Circuit affirmed in a published opinion that is now the leading articulation of
       the proper procedure for evaluating such claims in a television or motion picture


      We represented the Kamehameha Schools, the world's largest private K-12
       educational trust, obtaining a major en banc victory in the Ninth Circuit by a vote of
       8-7. The Schools, left by one of Hawaii's last monarchs for the benefit of Native
       Hawaiian schoolchildren, were sued by a non-native Hawaiian applicant challenging
       the Schools' admission policy as “race discrimination in contracting” in violation of
       the nation's oldest civil rights act, 42 U.S.C. § 1981.

      We represented a pro se plaintiff whose complaint alleging race discrimination under
       the Fair Housing Act had been dismissed, and persuaded the Second Circuit that no
       heightened pleading requirement exists for civil rights complaints alleging racial


      We won affirmance of summary judgment of non-infringement for Google in a
       patent infringement litigation in which plaintiff sought in excess of $150 million in
       past damages and a royalty on future revenue in the billions. The litigation
       concerned the AdWords auction system used by Google to sell advertisement space
       on search results pages for and partner sites. AdWords is by far the
       major source of revenue for Google, so this case went to the heart of its business.

      We represent Genentech, Inc. in an ongoing patent infringement suit initially
       brought by Sanofi-Aventis Deutschland in the Eastern District of Texas. After the
       district court denied Genentech’s motion to transfer, we successfully petitioned the
       Federal Circuit for a writ of mandamus to direct the Texas court to transfer the case
       to the Northern District of California.

      We represented Nike in its defense of a $40 million design patent and trade dress
       action brought by a rival shoe company over the translucent heel piece on Nike’s Air
       Jordan XVII basketball shoe. After our consumer survey persuaded the plaintiff to
       dismiss its trade dress claim, the court adopted our proposed patent claim
       construction on the design of the heel piece and granted summary judgment of non-
       infringement to Nike. We then represented Nike on appeal. Following a nearly

    hour-long argument centered on the use of broken lines to signify boundaries in
    design patents, the Federal Circuit affirmed the judgment in our client’s favor.

   We represented Brøderbund Software and Intuit Inc., two of the largest U.S.
    consumer software publishers, in Interactive Gift Express, Inc. v. CompuServe Inc.,
    widely recognized as the test case concerning business method patents and claims of
    ownership to Internet commerce. Apart from prevailing sufficiently to obtain
    summary judgment on remand, the case also established numerous appellate
    standards for the Federal Circuit, including those governing judicial estoppel and
    waiver in appeals from a district court's claims construction.

   We represented GameTech International in Planet Bingo LLC v. GameTech
    International, Inc., where the Federal Circuit established a new standard for
    determining infringement under the doctrine of equivalents that focused the analysis
    on the foreseeability of the asserted equivalent, before affirming a pre-trial judgment
    in favor of Gametech on both non-infringement and invalidity grounds.

   We represented Bancorp Services in a case where the Federal Circuit reversed a
    trial court’s finding of invalidity of our client’s patent. In obtaining reversal, our
    lawyers faced an opposing appellate team that included two former Solicitors
    General of the United States.

   We represented Nokia in a case brought by Qualcomm claiming infringement of
    patents covering basic telecommunications technology used in cellular telephones.
    In an appeal to the Federal Circuit, we obtained a ruling that the arbitrability of
    certain licensing issues was for the arbitrator to decide and set the standard for
    review for such issues.

   We represented Epson in the Federal Circuit's per curiam affirmance of the
    exclusion and cease-and-desist orders issued by the International Trade Commission
    finding that certain printer ink cartridges manufactured in China and elsewhere
    infringe upon Epson's patents and prohibiting their importation into the United

   Just one day after oral argument, the Federal Circuit affirmed our defense jury
    verdict of patent invalidity and non-infringement for RealNetworks in a five-week
    trial in which the plaintiff had sought in excess of $200 million in damages.

   We represented cellular telephone companies Motorola, Inc., BenQ America
    Corp., and Hon Hai Precision Industry Co., Ltd., and Chi Mei Communication
    Systems, Inc. in Board of Regents of the University of Texas System v. BenQ
    America Corp., Inc., 533 F.3d 1362 (Fed. Cir. 2008). After briefing and argument,
    the Federal Circuit affirmed the district court's claim constructions and award of
    summary judgment of non-infringement in favor of our clients. The opinion limited
    patentee's ability to rely on the open-ended transitional phrase "comprising" to
    obtain a judgment of infringement where the accused device practices additional,

      unclaimed steps. The Court relied on our argument that the prosecution history and
      the narrow language employed in the claim prohibited the patentee from relying on
      the word "comprising" to broaden the scope of the claims.

     We represented Netscape Communications Corp and AOL in a declaratory
      judgment action seeking to invalidate a patent that effectively claimed the internet
      itself. The district court granted the declaratory judgment plaintiffs' motion for
      summary judgment under the on sale bar and public use doctrines. The patentee
      appealed. After briefing and argument, we obtained a complete affirmance from the
      Federal Circuit.

     We represented Bancorp Services, L.L.C. in the appeal of an adverse summary
      judgment of non-infringement. We persuaded the Federal Circuit that the district
      court's claims construction was improper, and that the district court had erroneously
      credited the opposing expert over our client's own on summary judgment. The
      Federal Circuit vacated the summary judgment and remanded the case.


     We represent Payless ShoeSource, Inc. in the Ninth Circuit in an appeal of a $66
      million judgment in favor of adidas America, Inc. and adidas AG for trademark and
      trade dress infringement. After a jury trial, Payless was found liable for selling two-
      and four-striped shoes that adidas contended infringed its trademark rights in three-
      stripe athletic shoes and trade-dress rights in one of its athletic-shoe designs. Our
      appeal, which is fully briefed and awaiting argument, challenges the jury's finding
      of liability, the damages award, and the scope of the district court's injunction.

     We represented George V and Creative Designs, owners of the world-famous (and
      federally-registered) BUDDHA-BAR trademark and proprietary restaurant concept
      in a case they brought against their former licensee for trademark infringement and
      dilution regarding their unauthorized use of the BUDDHA BAR trademark and
      concept in connection with a Manhattan restaurant. The Appellate Division of the
      Supreme Court, First Department, reversed the trial court's denial of our
      clients' motion for preliminary injunction and held that the small disclaimer placed
      on defendant's website was not sufficient to dispel likely consumer confusion.

     We won an appeal in the Third Circuit on behalf of LendingTree arising in the
      context of a trademark and false advertising suit filed in New Jersey federal court by
      a competitor to shut down LendingTree's marketing of an innovative online real
      estate broker network. Presenting an issue of first impression in the Third Circuit,
      we persuaded the court to adopt a modified version of the doctrine of "nominative
      use" as a defense to trademark infringement, resulting in the vacatur of a preliminary
      injunction issued by the district court.

     We represent a major foreign government agency in the Second Circuit in a dispute
      concerning the ownership of a well known liquor trademark worth more than $1

     We represent The Walt Disney Company and Pixar Animation before the Ninth
      Circuit in connection with an appeal from the dismissal of a copyright and unfair
      competition action relating to the hit movie "Finding Nemo."

     We represent the Washington Redskins in the long running challenge by six Native
      American petitioners alleging disparagement to the Redskins' federal trademark
      registrations. In a little used "de novo" appeal to the D.C. District Court, we
      succeeded in overturning an adverse decision by the Trademark Trial and Appeal
      Board. We are presently briefing the D.C. Circuit on the issue of whether claims
      brought by one of the petitioners were barred by laches. We previously prevailed on
      this issue before the District Court.

     We represent the Academy of Television Arts & Sciences in the New York
      appellate courts in connection with an expedited appeal taken by the National
      Academy of Television Arts & Sciences from the lower court's dismissal of its
      petition to vacate an arbitral award prohibiting the unauthorized proliferation of new
      EMMY award categories for broadband programming and programming created for
      new distribution platforms such as iPhones and Blackberries.


     Quinn Emanuel represented Shell Offshore Inc. and Shell Gulf of Mexico Inc.
      (Shell) in expedited proceedings in the Ninth Circuit where environmental NGOs
      challenged the Mineral Management Service’s (MMS) approval of Shell’s plans for
      exploratory drilling for oil and natural gas in the Alaskan Arctic in Summer 2010.
      Shell turned to Quinn Emanuel to defend MMS’s approval of its 2010 plan after the
      company had received an adverse decision from the Ninth Circuit regarding its
      2007-2009 plan for exploratory drilling. In a unanimous memorandum opinion,
      issued just one week after oral argument, the Ninth Circuit granted MMS and Shell a
      complete victory by denying in full the petitions for review challenging Shell’s 2010
      plan. The Court agreed with our arguments that MMS had reached reasonable
      findings of no significant impact under the National Environmental Policy Act
      (NEPA) and had complied with the Outer Continental Shelf Lands Act (OCSLA).

     We represented New York Governor David Paterson and Lieutenant Governor
      Richard Ravitch in a 4-3 victory before the New York Court of Appeals in Skelos
      v. Paterson, which held that the Governor has statutory and constitutional authority
      to appoint a lieutenant governor to fill a vacancy in that office—an issue of first
      impression under New York constitutional law that the firm litigated from start
      to finish in just over two months.

   We represented the Alliance of Automobile Manufacturers in the Second Circuit
    and the Ninth Circuit, arguing that federal fuel economy laws preempt state to
    regulate greenhouse gas emissions. Seeking to overturn district court judgments
    in Vermont and California, we argued that federal law commits the task of
    balancing fuel conservation against the economic impact on the auto industry
    to the federal government, not the states. The appeals were ultimately settled by
    new federal legislation under President Obama.

   We represent insurer CNA in an appeal before the Nevada Supreme Court from a
    $43 million product liability award, the largest in that state's history.

   We represented Avery Dennison Corp. in the Ninth Circuit in an appeal arising
    from a petition for discovery under the Hague Convention. The Ninth Circuit
    affirmed the denial of a competitor's request for production of documents and, in a
    published opinion, further defined the scope of the statute providing for assistance to
    foreign and international cases.


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