Appellate

Perkins Coie's Appellate Practice group defends victories and seeks relief for clients in appellate courts across the country. We have represented clients before the U.S. Supreme Court, every federal appellate circuit court, many state appellate courts and dozens of federal and state agencies. Our experience before federal and state courts in Washington, Oregon, California, Arizona, Idaho and Alaska is especially deep. In addition, dozens of our appellate attorneys have served as federal or state appellate judicial clerks. That collective “insider" experience gives us insight into the reasoning and arguments that will resonate with appellate courts.

The matters we handle span the spectrum of civil, business and regulatory issues, and often involve complex records and emerging or unsettled law. Although we focus on appeals, our work often begins before the appeal stage. We regularly consult with clients and trial counsel to help shape trial strategies and preserve important issues for appeal. We also assist with key pre- and post-trial motions that set the stage for appeal. We excel at teaming with trial lawyers — both at our firm and other firms — so that our clients benefit from both the in-depth knowledge of their trial lawyers and the fresh perspective and expertise of appellate counsel.

We also have an active amicus practice that enables our clients (and often entire industries) to weigh in on important issues in appeals involving other parties. In addition, we assist our clients with special projects such as position papers, comments on proposed statutes and regulations, and analyses of recent changes in law.

Examples of recent matters we have handled include:

• Political Law.  We successfully represented Al Franken in litigation over the 2008 general election for United States Senator from Minnesota.  By a unanimous vote, the Minnesota Supreme Court rejected federal constitutional and Minnesota state law objections by Mr. Franken’s opponent, Norm Coleman, and held that Mr. Franken was entitled to a certificate of election.  In re Contest of Gen. Election Held on Nov. 4, 2008, 767 N.W.2d 453 (Minn. 2009).
• Military Justice.  In the landmark decision of Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the U.S. Supreme Court struck down the use of military commissions to try detainees held at Guantánamo Bay, Cuba. Serving pro bono, we joined Georgetown Professor Neal Katyal and Navy Lt. Cmdr. Charlie Swift in representing Mr. Hamdan throughout the proceedings.
• Constitutional Law. In a case in which we represented intervenor Washington Families Standing Together, the United Supreme Court recently ruled in favor of our client and the State of Washington, rejecting a claim that disclosing the names of people who had signed referendum petitions would violate the First Amendment. Doe v. Reed, 130 S. Ct. 2811 (2010). The case arose out of a state law extending certain benefits to same-sex couples. Some of the challengers who sought to put that law to a popular vote did not want their names revealed. By an 8-1 vote, the Supreme Court rejected the petitioners' facial claim of a First Amendment violation, although the Court allowed them to pursue an "as applied" challenge on remand. 
• Electronic Advertising Law. In Kleffman v. Vonage Holdings Corp., 232 P.3d 625 (Cal. Jun. 21, 2010), the California Supreme Court unanimously agreed with our client, Vonage, that California's "anti-spam" law did not prohibit sending commercial email advertisements from multiple domain names for the purpose of bypassing spam filters. Hearing the case on a certified question from the Ninth Circuit, the Court held that using multiple domain names does not constitute misrepresenting email header information and noted that the plaintiff's construction would have resulted in preemption by the federal CAN-SPAM Act.
• Securities and Corporate Governance.  In Sound Infiniti, Inc. v. Snyder, ___ P.3d ___, 2010 WL 2853906 (Wash. Jul. 22, 2010), the Washington Supreme Court adopted our arguments that (1) divested shareholders do not have standing to bring shareholder derivative claims under Washington law and (2) appraisal proceedings under Washington's Business Corporations Act are the exclusive remedy for minority shareholders dissenting from fundamental corporate changes unless the corporate action was fraudulent or procedurally defective.
• Natural Resources. In Klamath Irrigation District v. United States, 227 P.3d 1145 (Or. 2010), the Oregon Supreme Court ruled for our clients, who are water users in the Klamath River Basin, and held that they could pursue their federal court claims that the U.S. government took their property without just compensation when it terminated delivery of water from a federal reclamation project. The Oregon Supreme Court heard the case on certified questions from the U.S. Court of Appeals for the Federal Circuit.
• Environmental Law.  In Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S. Ct. 2458 (2009), we were co-counsel for the petitioner and convinced the Supreme Court to rule that the Army Corps of Engineers, not the Environmental Protection Agency, had the authority to permit discharges under Section 404 of the Clean Water Act.  The case has important ramifications for the mining industry and the Clean Water Act more generally.
• Intellectual Property.  In Marlyn Nutraceuticals, Inc. v. Mucos Pharma GMBH & Co., 571 F.3d 873 (9th Cir. 2009), we convinced the Ninth Circuit to vacate recall and restitution provisions of a preliminary injunction issued in a trademark case.  District courts must now consider the burden of the recall and whether the public faces substantial danger as well as the risk of confusion. In Monolithic Power Systems, Inc. v. O2 Micro International Ltd., 558 F.3d 1341 (Fed. Cir. 2009), the Federal Circuit affirmed that patent claims that had been asserted against our client were invalid as obvious.  Along the way, the court of appeals upheld the district court’s authority to appoint independent experts in patent cases under Federal Rule of Evidence 706.
• Telecommunications.  In Qwest Corp. v. Arizona Corporation Commission, 567 F.3d 1109 (9th Cir. 2009), the Ninth Circuit adopted our position that state utility commissions have no power to enforce obligations under Section 271 of the Telecommunications Act of 1996 and that conflict preemption prohibits state utility commissions from imposing unbundling requirements that the Federal Communications Commission has withdrawn.
• Tax.  Homestreet, Inc. v. State of Washington, Department of Revenue, 210 P.3d 297 (Wash. 2009), the Washington Supreme Court reversed the Washington Court of Appeals and held that the servicing fees earned following the sale of residential mortgage loans on a servicing-retained basis constitute "amounts derived from interest" and therefore are deductible for B&O tax purposes.  This decision has implications for all financial institutions that sell their loans on the secondary market in the State of Washington.
• Product Liability.  In Turbomeca, S.A. v. Era Helicopters LLC, 536 F.3d 351 (5th Cir. 2008), we persuaded the Fifth Circuit that the economic loss rule of East River Steamship Corp v. Transamerica Delaval, Inc., 476 U.S. 858 (1986), allows no exception for alleged post-sale negligence. The court accordingly affirmed the dismissal of claims that our client, a manufacturer of helicopter engines, negligently failed to warn about an alleged pre-sale product defect. In Clerides v. Boeing Co., 534 F.3d 623 (7th Cir. 2008), we convinced the Seventh Circuit to affirm that claims arising out of the crash of a Boeing 737 during a flight from Cyprus to Greece were properly dismissed on grounds of forum non conveniens and should be refiled in one of those countries.