Appellate + Supreme Court

Morrison & Foerster has a thriving national appellate practice in the Supreme Court of the United States, in the federal courts of appeals, and in state appellate courts. Leveraging their substantive expertise, our appellate attorneys have taken on some of the most challenging legal issues, including intellectual property, federal preemption, arbitration, patent law, tax, antitrust, financial services, RICO, securities, and class actions.

Our practice is consistently ranked as one of the top appellate and supreme court practices in the country by the Chambers guides, Legal 500 USA, and The National Law Journal. Co-chairs, Deanne Maynard and Joseph Palmore are both ranked in the 2017 guides for Chambers USA and Legal 500 USA and for the fourth year in a row the National Law Journal has named the practice to the Appellate Hot List.

U.S. Supreme Court

Several of our attorneys have particular expertise before the Supreme Court of the United States, having served in the Office of the Solicitor General and as law clerks to Justices. Deanne E. Maynard and Joseph Palmore, co-chairs of our Appellate and Supreme Court practice group, have collectively argued more than 20 cases before the Supreme Court and have filed more than 250 briefs there.

We regularly represent major corporations, trade associations, and industry groups before the Supreme Court. We are skilled at presenting our clients’ positions in a context that facilitates the Supreme Court’s resolution of a broad legal issue presented, while also advancing our client’s interests in the particular case. Our attorneys are experienced at briefing and oral argument before the Supreme Court on the merits of cases, and also at the certiorari stage. We are particularly adept at drafting briefs in opposition to certiorari petitions to preserve lower court victories as well as at preparing compelling certiorari petitions for Supreme Court review. We also represent clients in meetings before the Department of Justice, the Office of the Solicitor General, and other federal agencies related to appellate and Supreme Court litigation.

Federal and State Courts of Appeals

Our experience in the federal and state courts of appeals reflects similar breadth. Over the past five years, we have represented clients in more than one hundred cases in the federal courts of appeals, and in more than forty cases in state supreme courts. Our attorneys include numerous former federal appellate law clerks, as well as a former federal court of appeals judge and a former justice of the California courts of appeal.

Our appellate group works closely with our intellectual property attorneys. The firm’s attorneys have extensive experience arguing cases in the Federal Circuit, collectively handling more than 40 appeals in that court. For this reason, our practice was highly ranked in the 2009 edition of Legal 500 US, in which the editor writes, “Morrison & Foerster LLP’s 45-strong appellate practice makes for a formidable opponent in any commercial arbitration or patent appeal, in large part due to the group’s ability to collaborate with the firm’s robust patent litigation practice.”

Our group also has a preeminent and active practice in California’s appellate courts. In recent years, we have represented clients in dozens of appeals throughout the State on a wide variety of business issues. We have multiple attorneys with extensive experience with California’s specialized practice and procedure. Our attorneys include former Justice Miriam A. Vogel, who joined our firm after 18 years as a justice of the California Court of Appeal.

In federal and state courts, we provide our clients a wide range of appellate assistance, including work at the trial level to frame legal arguments for appeal, particularly on case-dispositive and post-judgment motions, drafting extraordinary writ petitions, strategic analysis of when and where to pursue further review, amicus curiae briefs, and, of course, briefs and oral argument in appellate courts. We frequently are retained after trial to bring an appeal and often work with trial counsel. We actively monitor appellate developments relevant to our clients’ industries to alert them to the potential effect of pending cases and forthcoming rulings.

MeadWestvaco Corporation
The U.S. Supreme Court handed us a victory in MeadWestvaco Corporation v. Illinois Department of Revenue et al., a case concerning the constitutional limitations on a state's power to tax multistate businesses. We represented MeadWestvaco Corporation in a dispute over whether the due process and commerce clauses preclude a state from taxing a nondomiciliary business on a capital transaction that occurred outside of the state. The State of Illinois had imposed a state tax on the approximately $1.5 billion sale by MeadWestvaco of its separate division Lexis/Nexis. The state appellate court sustained the tax, but the U.S. Supreme Court unanimously vacated that decision. The Court held that the Constitution does not permit a state to tax a non-domiciliary business for its activities that occur outside the taxing state unless the business's intrastate and extrastate activities are part of a single unitary business. States such as Illinois have, in recent years, sought to expand the reach of state taxation but, under this ruling, certain of these state taxes likely exceeded the state's constitutional authority and will require state courts to revisit prior rulings.
New Hampshire Motor Transport Association, Massachusetts Motor Transportation Association, and Vermont Truck & Bus Association
We won a 9-0 Supreme Court victory in the preemption case of Rowe v. New Hampshire Motor Transport Association (128 S. Ct. 989 (2008)), prevailing at all three levels of the federal court system (District of Maine, First Circuit Court of Appeals, and U.S. Supreme Court) on behalf of three trucking trade associations: the New Hampshire Motor Transport Association, the Massachusetts Motor Transportation Association, and the Vermont Truck & Bus Association. In front of the Supreme Court of the United States, we won an unusual unanimous ruling that invalidated two provisions of Maine law that would have imposed state regulation on the services that motor carriers provide when they deliver packages containing tobacco.
Sierra Pacific Industries
We represented Sierra Pacific in the appeal of Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection, winning a reversal of an intermediate appellate court decision and unanimously prevailing in the California Supreme Court. The California Supreme Court reversed and approved three timber harvest plans for the logging of trees on private land in the Sierra Nevada Mountains. The case involved the interpretation of California's Forest Practice Act rules governing the environmental review of timber harvesting plans. With this latest ruling, the California Supreme Court resolved two important issues that have statewide significance. First, the Court established the rules applicable to evaluating cumulative impacts of timber operations in the face of endangered species and harvesting impact claims. A second important aspect of the decision is setting the framework for the evaluation of pesticide and herbicide use in timber operations. The ruling in that regard will extend beyond the harvesting of timber and include many agricultural operations as well.
Boyle v. United States
(U.S. Supreme Court, 2009) Filed amicus brief supporting petitioner on behalf of the Chamber of Commerce of the United States of America concerning the association-in-fact enterprise requirement of the Racketeer Influenced and Corrupt Organizations Act.
Rearden LLC v. Rearden Commerce, Inc.
(Ninth Circuit, pending) Counsel for Rearden LLC in action involving claims for trademark infringement and cybersquatting currently on appeal.
Trainer Wortham & Company, Inc. v. Betz
(U.S. Supreme Court, 2010) Filed amicus brief in support of petition for a writ of certiorari on behalf of the Chamber of Commerce of the United States of America and the Organization for International Investment concerning when the statute of limitations begins to run in a federal securities fraud action.

Legal 500 US 2018
Appellate Court of Appeals
Appellate: Supreme Court (federal and state)

Chambers USA 2018
National: Appellate Law

“Significant recent additions have bolstered an already impressive practice, buttressing the firm's signature IP specialization while contributing to a more rounded appellate practice generally. Also brings expertise in copyright and large-scale class action matters.”

“I really think their performance is excellent, and they have consistently been very adept as attorneys.”
(Chambers USA)

“Morrison & Foerster LLP’s ‘very strong’ appellate practice is headed by the ‘exceptionally talented and incredibly dedicated advocate’ Deanne Maynard and Joseph Palmore, who is ‘an expert in healthcare and telecoms’.”

“The firm now has two of the top practitioners in the field with deep expertise in areas like intellectual property, telecommunications, and environmental law.”
(Legal 500 US)

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