Appellate Litigation

Skadden has handled numerous significant and precedent-setting cases in the appellate courts. Our attorneys have argued before the United States Supreme Court, all 13 United States Courts of Appeals and state appellate courts.

Our appellate lawyers perform a range of services relating to appeals and accompanying legal issues, including:

  • briefing and arguing appeals on the merits;
  • preparing and opposing petitions for review in the U.S. Supreme Court and state supreme courts;
  • providing advice and assistance in briefing significant legal issues at the trial court level;
  • advising clients on appellate issues during and after trial;
  • handling agency appeals before various regulatory bodies; and
  • preparing amicus curiae briefs.

In this era of “mega-litigations” and multidistrict practice often involving nontraditional routes of appellate process, our appellate lawyers also engage in frequent motions practice in the courts of appeals and prepare petitions for, and oppositions to, writs of mandamus.

Our Approach to Appellate Litigation

Our Appellate Litigation Group combines Skadden’s extensive firmwide experience and knowledge of business law and litigation — developed from decades of litigating and counseling clients on many of their most high-profile and novel, bet-the-company business law issues — with our attorneys’ appellate experience. Ensuring that all aspects of a particular matter are thoroughly analyzed, our appellate teams consist of both lawyers who are well-versed in particular areas of business law and industry-specific practice, and appellate lawyers who analyze and present these issues within the context of appellate tribunals’ broader legal perspectives.

Skadden’s appellate teams use creative legal analysis and writing to present legal and jurisprudential solutions to business problems. Our lawyers study legal trends in federal and state appeals courts, as well as the views of individual jurists, to advocate most effectively on behalf of our clients. We work with important private trade associations and federal, state and local governmental agencies to obtain amicus curiae support where appropriate. We also regularly interact with and monitor the work of leading academics to ensure that the most current scholarly developments are analyzed when presenting the public policy implications of novel legal issues.

Based on our work with appeals and complex business law issues, Skadden frequently is asked to represent clients in significant litigation at the post-trial or appellate stages and is regularly involved in cases presenting important issues of first impression in trial and appellate courts.

Skadden was named a member of the “Fearsome Foursome” — the four most formidable law firm litigation opponents — for the sixth consecutive time in a survey of corporate counsel conducted by BTI Consulting and published in 2016 and named as a “powerhouse” in BTI’s Securities Litigation, IP Litigation, Complex Commercial Litigation, Class Actions and Product Liability categories in 2016. We were named the 2016 Law Firm of the Year” for Commercial Litigation by U.S. News – Best Lawyers. We ranked in the top tier for commercial litigation by U.S. News – Best Lawyers “Best Law Firms” 2017.

Representative Appellate Experience

Federal Court

Skadden has handled some of the most significant appeals in federal appellate courts affecting business. For example, in the U.S. Supreme Court, Skadden represented Merrill Lynch & Co., Inc. in its landmark victory in Merrill Lynch v. Dabit, in which the Court held that the Securities Litigation Uniform Standards Act (SLUSA) preempts private securities class actions brought under state law by individuals who assert claims as “holders” of securities and who do not allege that they purchased or sold securities during the period in question.  

Skadden also has an extensive practice before the federal courts of appeals. Because of the rare and unusual availability of Supreme Court review, the significant body of business law is developed in the other federal appellate tribunals. In these courts, Skadden has secured important legal rulings in cases of first impression in a variety of areas of substantive law — including securities, antitrust, intellectual property, administrative, white collar, constitutional and bankruptcy law. For example, in the U.S. Court of Appeals for the Second Circuit in California Public Employees’ Retirement System v. WorldCom, Inc., Skadden secured a precedent-setting victory on behalf of major underwriter defendants on an issue of first impression at the intersection of bankruptcy and securities laws. Similarly, in an en banc decision by the U.S. Court of Appeals for the First Circuit in SEC v. Tambone, Skadden won an important victory about the appropriate scope of liability for "making a statement" under the securities laws.

State Appellate Courts

Some subject matters, such as corporations, insurance and torts, are predominantly matters of state law and are generally litigated in state court. Increasingly, plaintiffs select state court as their forum of choice for filing banking, consumer and shareholder actions. Skadden attorneys have had substantial experience with appellate litigation in state supreme courts and in the intermediate state appellate courts.