Appellate Practice

Representative cases include:

  • In re Deepwater Horizon. Pepper represented former FBI Director Louis J. Freeh as Special Master appointed by Judge Carl Barbier of the US District Court for the Eastern District of Louisiana, who oversaw the multibillion-dollar class action settlement negotiated in the wake of the BP Deepwater Horizon oil spill in the Gulf of Mexico. Freeh and his staff (including many Pepper attorneys and staff) investigated and issued a comprehensive report on fraudulent payments made from the settlement fund, and the court directed Freeh to further review the claims process and prior paid claims for potential fraud. Over more than two years, this resulted in many improvements to the claims process, as well as successfully clawing back millions of dollars in improper payments from the settlement fund. Pepper also represented Freeh in numerous cases, including several appeals challenging his findings. See, for example, Deepwater Horizon v. Freeh, 845 F.3d 634 (5th Cir. 2017); Deepwater Horizon v. BP Exploration & Prod., Inc., 824 F.3d 571 (5th Cir. 2016), Lake Eugenie Land & Dev., Inc. v. BP Exploration & Prod., Inc., 643 Fed. Appx. 377 (5th Cir. 2016).
  • As part of Pepper’s engagement as national counsel for GlaxoSmithKline in the litigation over its diabetes medication Avandia, we obtained dismissal of numerous consumer class actions, all of which were upheld on appeal. See, for example, Laurino v. GlaxoSmithKline LLC, 2016 U.S. App. LEXIS 2463, 1-2 (3d Cir. 2016) (dismissing consumer class action under Missouri law); D’Apuzzo v. SmithKline Beecham Corp., 588 Fed. Appx. 171 (3d Cir. 2014) (dismissing consumer class action brought under New Jersey law); Dumpson v. SmithKline Beecham Corp., 564 Fed. Appx. 672 (3d Cir. Pa. 2014) (dismissing consumer class action brought under California law).
  • In re Class 8 Transmission Direct Purchaser Antitrust Litigation, No. 1:10-cv-260-SLR (3rd Cir. 2017) Obtained affirmation of the trial court’s complete dismissal, at class certification stage, of an indirect purchaser class action alleging a conspiracy to install a monopolist transmission supplier.
  • Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 572 Fed. Appx. 988 (Fed. Cir. 2014). Pepper obtained a defense jury verdict on behalf of Sensormatic Electronics Corp. in a patent infringement case. The trial court found the case to be “exceptional” under section 235 of the Patent Act and ordered Checkpoint to pay more than $4 million in fees and costs to the defendants. Checkpoint appealed the award of fees. The Court of Appeals for the Federal Circuit overturned the district court’s award, and Sensormatic sought a writ of certiorari before the U.S. Supreme Court. After the Supreme Court in the Octane Fitness case revised the standard for determining what cases are “exceptional” under the Patent Act, it remanded the Sensormatic case back to the Federal Circuit, which, on a motion by Pepper, remanded it to the trial court. The trial court reinstated the original fee award and additional fees and interest (more than $6.7 million in total), making this the fourth-largest fee award in a patent case in the last decade, and the largest since the Octane Fitness ruling.
  • As part of Pepper’s engagement as national counsel to Eli Lilly and Company in the Zyprexa litigation, we won dozens of summary judgment rulings on product liability cases, and more than a dozen appeals (without a defeat). See, for example, Dagliano v. Eli Lilly Pharm. Drug Co., No. 12-1329-cv (2d Cir. 2013); Sistrunk v. Eli Lilly & Co., 508 Fed. Appx. 22 (2d Cir. 2013); Rogart v. Eli Lilly & Co., 491 Fed. Appx. 270 (2d Cir. 2012); McClamrock v. Eli Lilly & Co., 504 Fed. Appx. 3 (2d Cir. 2012); Greaves v. Eli Lilly & Co., 503 Fed. Appx. 70 (2d Cir. 2012); Shepherd v. Eli Lilly & Co., 497 Fed. Appx. 143 (2d Cir. 2012); McElroy v. Eli Lilly & Co., 495 Fed. Appx. 166 (2d Cir. 2012).
  • United States v. Quality Stores, Inc., et al., No. 10-1563 (6th Cir. 2012; U.S. Sup. Ct. 2014).  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); argued on behalf of client before the U.S. Supreme Court, which reversed the Sixth Circuit.
  • SB Liquidation Trust v. Preferred Bank (In re Syntax-Brillian Corp.), 573 Fed. Appx. 154 (3d Cir. 2014). Representing the liquidation trust in this bankruptcy case, we obtained reversal of a bankruptcy court's dismissal of an adversary proceeding to avoid fraudulent transfers under the Bankruptcy Code and the Delaware Uniform Commercial Code.
  • In re Syncora Guarantee Inc., 757 F.3d 511 (6th Cir. 2014). As part of Pepper’s representation of the City of Detroit as special counsel in its historic bankruptcy proceedings, we obtained a ruling from the Sixth Circuit ordering the U.S. District Court for the Eastern District of Michigan to decide whether casino tax revenue collected by the city should be considered part of its estate during the bankruptcy case.
  • Compression Technology Solutions, LLC v. EMC Corporation, No. 2013-1513 (Fed. Cir. 2014). Obtained Federal Circuit affirmation of a Rule 36 dismissal of patent infringement claims asserted against our client NetApp, Inc. on a patent relating to information storage and communication, dismissing the case before discovery, claim construction and Markman.
  • ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 724 F.3d 854 (7th Cir. 2013). Obtained affirmation from the Seventh Circuit of ADT’s successful challenge of a municipal ordinance making a local fire district the exclusive provider of fire alarm monitoring services.
  • Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 2013 ILRC 1071 (9th Cir. 2013). Obtained affirmation of dismissal of a putative class action alleging that ADT’s practice of recording customer phone calls violated California Penal Code sec. 632.
  • In re West Penn Allegheny Health System, Inc., No. 12-1550 (3d Cir. 2012). Successfully achieved the reversal of discovery orders and a reassignment of the case on mandamus.
  • United States v. Quality Stores, Inc., No. 10-1563 (6th Cir. 2012). Obtained a 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; in 2014 we argued this before the U.S. Supreme Court, which reversed the Sixth Circuit.
  • Garcia v. The Hartford, 474 Fed. Appx. 252 (4th Cir. 2012). Dismissal of employment discrimination and retaliation claims upheld on appeal.
  • Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 2010 U.S. App. LEXIS 13827 (3d Cir. 2010). Principal counsel on appeal of jury that which was affirmed for our client on appeal.
  • UFCW Local 1776 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 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 (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 the case that 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 & Supply GNSS, Ltd. 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.

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