Practice Areas
Practice Areas

Appellate Practice

Practice Leader: Barbara W. Mather

The skills required to try a case to a jury or to a court are, in many important ways, different from those required to handle a case on appeal. The goal of trial counsel is to persuade the jury or the judge to adopt a particular view of the evidence and the facts. The objective of appellate counsel is to persuade the court to adopt a particular view of the law. Pepper Hamilton LLP’s Appellate Practice Group serves our clients’ needs in this complex and sophisticated area. The depth of our appellate practice allows us to handle appeals in cases we tried, to serve as appellate counsel in cases tried by other lawyers, and to act as counsel for amicus curiae for interested third parties.

We generally use lawyers who were not involved in a case at the trial level to review most appellate filings reviewed. We also hold “moot court” arguments, which allows the lawyer handling the appeal to prepare for oral argument by practicing before other lawyers familiar with the case and knowledgeable in appellate practice.

Our appellate litigators have successfully handled matters in the federal appellate courts and the appellate courts of many states. Group members include former law clerks to federal and state appellate judges and seasoned veterans of the federal and state appellate bars.

Representative Engagements

  • In re West Penn Allegheny Health System, Inc., No. 12-1550 (3d Cir. 2012). Successfully achieved reversal of unappealable discovery orders and reassignment of the case on mandamus.
  • United States v. Quality Stores, Inc., et al., No. 10-1563 (6th Cir. 2012). Obtained Sixth Circuit ruling holding that supplemental unemployment compensation benefits (paid by a bankrupt company to its former employees were not wages subject to taxation under the Federal Insurance Contributions Act (FICA). The Sixth Circuit declined to follow a contrary 2008 decision on the issue by the Federal Circuit, CSX Corp. v. United States, the only other court of appeals decision to address the issue.
  • Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 2010 U.S. App. LEXIS 13827 (3d Cir. 2010). Principal counsel on appeal of jury verdict which was affirmed for our client on appeal.
  • UFCW Local 1776 et al. v. Eli Lilly and Company, U.S. App. LEXIS 18959 (2nd Cir. 2010). As part of Pepper’s engagement as national counsel to Eli Lilly in the Zyprexa litigation, Pepper represented Lilly in litigation by union pension funds and insurers alleging that they overpaid for Zyprexa prescriptions (third-party payor litigation). Judge Jack Weinstein of the Eastern District of New York had certified the case as a class action. Pepper obtained a reversal from the Second Circuit of the district court’s class certification. The Second Circuit also reversed the district court’s denial of summary judgment for Lilly, and remanded the case back to the lower court for further proceedings. The U.S. Supreme Court denied certiorari to an appeal seeking to overturn the Second Circuit.
  • In re Milton Hershey School, 590 Pa. 35, 911 A.2d 1258 (Pa. 2006). The Hershey Trust engaged her to argue unsettled issues concerning who had standing to sue a nonprofit board in Pennsylvania. The Hershey alumni association had challenged management decisions of our client Milton Hershey School and actions of the Attorney General of Pennsylvania. Our client prevailed and the association was denied standing.
  • Representing one of the principal defendants in the Linerboard Antitrust Litigation cases charging price fixing, and arguing the class action issues in the U.S. Court of Appeals for the Third Circuit on behalf of a group of defendants.
  • In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 2008 WL 5411562, (3d Cir. 2008). Served as co-counsel in a groundbreaking class action decision.
  • Volvo Trucks North America, Inc. v. Reeder-Simco, 126 S. Ct. 860 (2006). Provided strategic and legal counseling for amicus briefs in the first Robinson Patman Act decision to be heard by the U.S. Supreme Court in more than 10 years. The Court held that in a competitive bidding situation, a manufacturer may not be held liable for secondary line price discrimination absent a showing that the manufacturer discriminated between purchasers competing to resell the same product to the same retail customer. The decision makes it far more difficult for disfavored customers to bring price discrimination claims in competitive bidding situations. It also clarifies the type of evidence needed to prove competitive injury in such situations.
  • Garcia v. Wyeth-Ayerst Laboratories, 385 F.3d 961 (6th Cir. 2004). Lead counsel on case which affirmed summary judgment for Wyeth and resulted in upholding the federal constitutionality of the Michigan Drug Product Liability Immunity Statute (the only one in the nation providing immunity to drug companies for the manufacture or sale of drugs approved by the FDA for safety and efficacy absent fraud on the FDA.
  • Globe Nuclear Services and Supply GNSS, Limited v. AO Techsnabexport (No. 04-1007, 4th Cir. July 22, 2004). On behalf of a U.S. company involved in disposing of material from dismantled Russian nuclear warheads, we obtained a ruling reinforcing the principle that governments that contract with private parties cannot avoid those contracts by claiming sovereign immunity.
  • Tucker v. Philadelphia Daily News, 848 A.2d 113 (Pa. 2004). Represented newspaper in Pennsylvania Supreme Court case in which the Court reversed the Superior Court and affirmed the trial court’s dismissal of complaint on preliminary objections on the grounds of actual malice. This decision is important in Pennsylvania, setting a high bar for any actual malice case to proceed.
  • Moba, B.V. v. Diamond Automation, Inc., 01-1063, -1083 (Fed. Cir. 2003). Represented a Dutch egg-processing machinery manufacturer in its successful defense against claims of infringement on four U.S. patents in the U.S. District Court for the Eastern District of Pennsylvania, resulting in a jury verdict of non-infringement on all four patents. After an appeal involving only two of the patents, the U.S. Court of Appeals for the Federal Circuit upheld the jury verdict in all respects as to one patent and reversed on infringement as to the other. The matter resolved in a settlement.
  • LePage’s Inc. v. 3M Co., 324 F.3d 141 (3d Cir. 2003), the U.S. Supreme Court denied certiorari in 2004. Represented the plaintiff in a monopolization action that was tried before a jury and resulted in a verdict of $22.8 million before trebling; in the appeals of this case the Third Circuit overruled its own en banc panel to uphold our arguments.
  • William and Nancy Devlin, et al. v. City of Philadelphia, et al., Supreme Court of Pennsylvania, Eastern District, No. 43 EAP 2003. Special Appellate Counsel for the City of Philadelphia in successful appeal upholding the validity of ordinance providing domestic partner benefits.
  • Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003). Important Pennsylvania Supreme Court case relating to protection of sources under Pennsylvania’s Reporter’s Shield Law.
  • Anderson, et al. v. Consolidated Rail Corporation, No. 98-6043, 1999 U.S. Dist. LEXIS 4847 (E.D. Pa. Apr. 7, 1999), aff’d, 297 F.3d 242 (3d Cir. 2002). Successfully defended client against multiple plaintiff “mass” action claims regarding various alleged ERISA violations, including interference with benefits, breach of fiduciary duty and benefits claims, relating to discharges as part of company-wide reduction in force.
  • Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001). Represented Medtronic Sofamor Danek, Inc. as amicus curiae in case establishing that common-law claims of fraud on the FDA are impliedly preempted by federal law.
  • King v. Danek Medical, Inc., 37 S.W.3d 429 (Tenn. App. 2000). Represented Medtronic Sofamor Danek, Inc. in successfully obtaining affirmation of the dismissal of hundreds of product liability suits involving a prescription medical device on the grounds that the plaintiffs had established no defect, their experts failed to establish medical causation, the learned intermediary rule barred all warning claims for lack of physician reliance, and there was no claim available for negligence per se based upon violations of the Food, Drug & Cosmetic Act (FDCA).
  • Bryant v. HCA Services, Inc., 15 S.W.3d 804 (Tenn. App. 2000). Represented American Medical Association and Tennessee affiliates as amicus curiae in case establishing that Tennessee would not recognize an informed consent cause of action against a hospital.
  • In re Advanta Securities Litigation - No. 98-1846 (3rd Cir. 1999). Represented director defendants in the first case in which the Third Circuit interpreted the pleading requirements of the Private Securities Litigation Reform Act.
  • Talley v. Danek Medical, Inc., 179 F.3d 154 (4th Cir. 1999). Represented appellee in successful defense of summary judgment against claim of negligence per se for violation of the Food Drug & Cosmetic Act and product liability claims.
  • Wilson v. Vermont Castings, Inc., 170 F.3d 391 (3d Cir. 1999). Represented PLAC as amicus curiae in case establishing that evidence of plaintiff conduct may be admissible in strict product liability actions to establish an alternative causative mechanism.
  • In re Unisys Savings Plan Lit., 1997 WL 732473 (E.D. Pa. Nov. 24, 1997), aff’d, 173 F.3d 145 (3d Cir. 1999), the U.S. Supreme Court denied certiorari on October 18, 1999. Successfully defended Unisys against class action claims regarding acquisition of certain guaranteed investment contracts.
  • Engelhart v. Consolidated Rail Corp., No. 92 7046, 1996 WL 5526726 (E.D. Pa. Sept. 18, 1996), aff’d, 127 F.3d 1095 (3d Cir. Aug. 5, 1997) (Table, No. 96 1920), cert. den., 1998 WL 83637(U.S.). Successfully defended numerous class claims against Consolidated Rail Corporation and its fiduciaries alleging misuse of pension surplus, wrongful elimination of early retirement subsidies and improper offset of Railroad Retirement Board benefits.
  • Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997). Established that an employer’s removal of product’s safety device is a superseding cause that cuts off a manufacturer’s liability.
  • Skipworth v. Lead Indus. Ass’n, 690 A.2d 169 (Pa. 1997). Secured rejection of market share theory of liability.
  • Massachusetts School of Law at Andover, Inc. v. American Bar Ass’n, 107 F.3d 1026 (3d Cir. 1997). Obtained and preserved on appeal summary judgment in a private antitrust action, brought by an unaccredited law school claiming that the ABA’s refusal to accredit the school was a group boycott.

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