On appeal, as in trial, our attorneys display tactical sophistication and a penchant for getting to the point. At Keker & Van Nest, our briefs have a tone that is scholarly and credible, yet also pragmatic, incisive and never boring.
To be effective, appellate lawyers must:
- Work fruitfully and cooperatively with trial counsel
- Craft jury instructions and post-trial motions that preserve the issues for possible appeal
- Reframe the issues to maximum advantage
- Tell a compelling story within the constraints of the applicable standard of review
- Bolster doctrinal arguments with arguments about public policy and legislative intent
- Challenge a ruling, not the judge who issued it
- Know when to defend the trial court’s reasoning and when to suggest a simpler route to the same result
- Write a brief that blends emotion and reason without sounding like a jury argument
- Write clean, spare prose that says just enough
Our lawyers - most of whom have clerked for federal judges - have honed these skills and deployed them successfully in appeals and writ proceedings spanning the entire field of complex litigation.
Steve Hirsch was named one of the 2015 Attorneys of the Year for his appellate work on behalf of Davis Wright Tremaine and Foley & Lardner in the Heller Ehrman bankruptcy matter.
Best Lawyers in America ranks Keker & Van Nest as a Tier 1 firm nationally for Appellate Law.
Benchmark Litigation recognized Keker & Van Nest as a leading Appellate Firm in the Ninth Circuit.
The Recorder named Elliot Peters a 2010 Attorney of the Year for successfully representing the Major League Baseball Players Association before the U.S. Circuit Court of Appeals for the Ninth Circuit.
Cases of Note
Netflix, Inc. v. Rovi:
We defended our clients Netflix, Inc. and Roku Corporation in a U.S. International Trade Commission complaint filed by Rovi Corporation. The complaint accused our clients, along with Mitsubishi Electric Corp., LG Electronics Inc., and Vizio Inc., of infringing several patents related to interactive program guides. The complaint sought an order banning television and media-player makers from entering the U.S. By the time of the trial, the other defendants had settled and our clients faced four patents. We successfully defended our clients at trial, with the ALJ finding one of the patents invalid and none of the patents infringed, as well as no actionable importation or available remedy. The ITC confirmed there was no violation. Rovi then pursued the matter in District Court with three of the same patents used in the ITC investigation as well as two additional patents. We won summary judgment of invalidity under Alice on all five asserted patents, which the Federal Circuit affirmed summarily.
Plaintiff v. Intuitive Surgical, Inc.:
We defended Intuitive Surgical, Inc., a leading manufacturer of cutting-edge robotic surgery devices, from a securities class action. Plaintiffs alleged that Intuitive Surgical issued false and misleading statements regarding the company's financial results and prospects, when during the economic crisis of 2008, its financial results did not meet previously announced predictions. Plaintiffs’ lawyers filed a securities class action, which U.S. District Judge Lucy H. Koh dismissed with leave to amend. Then in a written opinion, Judge Koh agreed with each of our arguments, and dismissed the class action for the second time, this time with prejudice. Finally, the Ninth Circuit unanimously affirmed the dismissal in a 23-page published opinion.
San Jose, et al. v. Office of the Commissioner of Baseball and Allan Huber “Bud” Selig:
The city of San Jose sued our client, Major League Baseball, alleging antitrust violations and various state law claims related to the Oakland Athletics possible relocation to San Jose. The lawsuit claimed that Major League Baseball and its commissioner violated state and federal laws regarding unfair business practices and anticompetitive conduct. It also challenged the exemption to antitrust laws that the U.S. Supreme Court first upheld for Major League Baseball in 1922. We successfully moved to dismiss plaintiffs’ antitrust claims, the Ninth Circuit Court of Appeals affirmed that ruling, and we convinced the Supreme Court of the United States to decline a petition for certiorari.
Department of Justice v. Major League Baseball Players Association:
We successfully represented the Major League Baseball Players Association in its high-profile battle with the U.S. government. In August 2009, an en banc panel of the U.S. Circuit Court of Appeal for the Ninth Circuit ruled that federal investigators unlawfully seized drug-testing records of more than 100 athletes. In September 2010, the court issued a revised opinion that upheld its ruling.
San Mateo School Districts v. San Mateo County:
We represented San Mateo County and its former treasurer against a $20 million suit brought by a group of San Mateo County school districts. Following the 2008 Lehman Brothers bankruptcy - in the midst of the nationwide financial crisis - plaintiffs filed suit against the County, alleging officials violated their fiduciary duties by investing too heavily in Lehman holdings. However we convinced a San Francisco Superior Court judge to dismiss the case on the grounds that the complaint failed to comply with state and county laws governing lawsuits against public entities.
Keller v. Electronic Arts Inc. et al:
We secured a favorable settlement for Electronic Arts Inc. (EA) in this groundbreaking antitrust and right of publicity class action. Current and former student-athletes claimed EA improperly used the athletes’ likenesses and biographical information in its NCAA Football and NCAA Basketball video games.
Employee v. Lucasfilm:
In the original case, a Lucasfilm employee filed a complaint for employment harassment and discrimination under Title VII of the Civil Rights Act of 1968. After Lucasfilm was granted summary judgment, the employee appealed to the Ninth Circuit. On behalf of Lucasfilm, we again secured summary judgment.
Plaintiff v. Universal Music Publishing, Inc.:
In this pro bono matter, we represented an individual in her suit against Universal Music Publishing, Inc. Universal issued a Digital Millennium Copyright Act take-down notice to YouTube regarding our client's video, which used 20 seconds of music from one of Universal's clients. We then sued Universal, arguing that a copyright holder must consider fair use before sending a takedown notice. The Ninth Circuit affirmed that a copyright holder must do so, and clarified that an aggrieved party may show the required intent by showing intentional conduct or willful blindness by the copyright holder.
Plaintiff v. Real Estate Brokerage Firm:
On behalf of a real estate brokerage firm and several of its subsidiaries, we successfully moved to dismiss RICO claims relating to the valuation and sale of real estate, and successfully defended that victory before the Ninth Circuit, which upheld the dismissal without leave to amend in a published opinion.
Plaintiff v. Law Firm:
We represented an Am Law 100 firm and one of its former partners in suits over the alleged mishandling of a patent application relating to electronic billboard technology. We won the complete dismissal of a state court action which was upheld by the California Court of Appeal. The plaintiff then filed a certiorari petition, however the U.S. Supreme Court denied it. We also secured the dismissal of four federal court claims, and won summary judgment on the remaining federal claim.
Jordache v. Brobeck, Phleger & Harrison:
In a landmark decision that changed the rules for legal malpractice, we defended former law firm Brobeck, Phleger & Harrison LLP against legal malpractice allegations. We secured dismissal on summary judgment, which the California Supreme Court affirmed.