Supreme Court & Appellate

Mayer Brown has a long track record of appellate victories—big and small—that advance our clients’ interests. But at Mayer Brown, appellate litigation isn’t just about winning cases. It’s about shaping the law. Through our work in the US Supreme Court, our elite team of lawyers has transformed the legal environment. With a case that “turned the world of consumer class action law on its head” (Law360), we pioneered the use of arbitration to avoid inefficient consumer class actions (AT&T v. Concepcion). We charted the course that freed the securities markets from antitrust laws (Credit Suisse v. Billing). We convinced the Supreme Court to recognize constitutional limits on punitive damages (BMW v. Gore, Philip Morris v. Williams, and Honda v. Oberg). And in “the biggest securities-litigation court clash in a generation” (The Wall Street Journal), we snuffed out the theory of securities fraud “scheme liability” (Stoneridge v. Scientific-Atlanta).

Mayer Brown has a history of big wins for business in the Supreme Court, including Credit Suisse First Boston v. Billing; Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co. and Philip Morris USA v. Williams. Our winning streak has continued with successes in Impression Products v. Lexmark, Spokeo, Inc. v. Robins, Mayo Collaborative Services v. Prometheus Labs, AT&T Mobility LLC v. Concepcion, CSX Transportation, Inc. v. Hensley and Stoneridge Investment Partners v. Scientific-Atlanta, among others.

• Impression Products, Inc. v. Lexmark International, Inc. The doctrine of patent exhaustion holds that, after the first authorized sale of a patented article, the patent rights in that particular article are exhausted and the patentee cannot exert any further control over the article under patent law. On May 30, 2017, the Supreme Court held that this doctrine applies “regardless of any restrictions the patentee purports to impose or the location of the sale,” abrogating two Federal Circuit decisions from 1992 and 2001 that had respectively held that (1) patentees could avoid patent exhaustion by imposing express restrictions on the use or resale of an article at the time of the first sale; and (2) a patentee’s US patent rights are not exhausted when an article is sold abroad. First, the Court unanimously (Justice Gorsuch did not participate) held that a patentee cannot use patent law to enforce post-sale restrictions on the use or resale of an article, because any authorized first sale exhausts the patentee’s rights, irrespective of a patentee’s attempts to impose conditions on its sale of the article. In short, as the Court explained, “patent exhaustion is uniform and automatic.” Second, the Court held 7-1 (Justice Ginsburg dissented) that a patentee’s US patent rights are exhausted by the authorized sale of an article abroad. The Court held that the common-law rule against restraints on alienation of chattels, which is the basis for the patent exhaustion doctrine, is “borderless” and that US patent rights are therefore exhausted by foreign sales in the same way as by domestic sales.
• Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015). Under Article III of the US Constitution, a plaintiff must allege that he or she has suffered an “injury-in-fact” to establish standing to sue in federal court. The Ninth Circuit held in this case, however, that a putative class representative had standing to bring suit against our client, Spokeo, Inc., merely because of a bare, technical violation of the Fair Credit Reporting Act that caused no concrete harm. The US Supreme Court granted our petition for certiorari and reversed and remanded the case to the Ninth Circuit. The Court held that “the injury-in-fact requirement requires a plaintiff to allege an injury that is both ‘concrete and particularized.’” The Ninth Circuit erred, the Court concluded, because it ignored the “concreteness” element, which requires that the plaintiff show that his or her alleged concrete harm “actually exist[s]” and that it is “‘real,’ and not ‘abstract.’” On this basis, the Court rejected the Ninth Circuit’s rule that “the violation of a statutory right is usually a sufficient injury in fact to confer standing.” A plaintiff does not “automatically satisfy the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right,” the Court explained. “Article III standing requires a concrete injury even in the context of a statutory violation.” 
• Mayo Collaborative Services (d/b/a Mayo Medical Labs.) v. Prometheus Labs., 132 S. Ct. 1289, 2012 WL 912952 (Mar. 20, 2012). After we obtained a GVR in light of Bilski v. Kappos, the Federal Circuit reaffirmed its prior ruling that Prometheus’s patents—which cover a process of administering a drug, testing blood for metabolites of that drug, then determining if the metabolite level suggests a possible change in drug dosage—satisfy Section 101 of the Patent Act under the “machine and transformation” test. It so held even though the result is to preempt all uses of naturally occurring correlations, which have long been held not to be patentable subject matter, and thus to prevent the free use of natural phenomena to develop better and cheaper tests. The Court granted our petition for certiorari and unanimously reversed, holding that Prometheus’s process was not patentable.
• AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). AT&T Mobility’s agreements with its customers require disputes to be resolved on an individual basis in arbitration. To ensure that individual arbitration is a realistic means of resolving small disputes, ATTM’s arbitration provision specifies, among other things, that ATTM will pay the full cost of arbitration; that arbitrators may award any remedy on an individual basis that a court could; that ATTM will pay customers who are awarded more in arbitration than ATTM’s last settlement offer the amount of the award or $7,500 (now $10,000), whichever is greater, plus double attorneys’ fees; and that under no circumstances will ATTM seek an award of attorneys’ fees from a customer. In this case, the district court and Ninth Circuit both found that customers are able to vindicate their claims on an individual basis under ATTM’s arbitration clause, but nonetheless concluded that the clause is unconscionable under California law solely because it precludes class actions. The Supreme Court granted our petition for certiorari and, by a 5-4 vote, agreed with our argument that the Federal Arbitration Act preempts this interpretation of California law.
• CSX Transportation, Inc. v. Hensley, 129 S. Ct. 2139 (2009). The Supreme Court held in Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135 (2003) that a plaintiff who has asbestosis may recover for fear of contracting cancer under the Federal Employers Liability Act (“FELA”) only if he or she proves that the alleged fear is “genuine and serious.” We filed a petition for certiorari asking the Court to address whether the jury must be instructed on this requirement for a fear-of-cancer claim. In a highly unusual step, the Court summarily reversed the lower court, without merits-stage briefing or oral argument, and held, in a 7-2 per curiam opinion, that trial courts may not refuse to give a “genuine and serious fear” instruction. The lower court then ordered briefing and argument on whether the instructional error was harmless. Accepting our contention that the federal harmless-error standard applies, the court further agreed with us that the instructional error was not harmless and proceeded to order a new trial on damages.
• Polar Tankers, Inc. v. City of Valdez, 129 S. Ct. 2277 (2009). The Court granted our petition for certiorari in this case as to whether, consistent with the Tonnage Clause (U.S. Const. art. I, § 10, cl. 3), states may impose property taxes that target vessels that frequent the states’ ports, and whether, consistent with the Commerce Clause (U.S. Const. art. I, § 8, cl. 3) and Equal Protection Clause (U.S. Const. amend. XIV, § 1), states may tax out-of-state vessels for the period of time that they spend on the high seas. By a vote of 7-2, the Court agreed with our position that the City of Valdez’s exaction on vessels exceeding 95 feet in length violated the Tonnage Clause.
• Stoneridge Investment Partners v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008). Hailed by The Wall Street Journal as the “the biggest securities-litigation court clash in a generation,” the Supreme Court agreed with Mayer Brown’s argument that third parties who do not themselves mislead investors cannot be held liable for damages even if their conduct facilitates the fraud of another. Among the most notable and lasting impacts of the Court’s decision was its dismissal of scheme liability as the basis for securities lawsuits, yielding a collective sigh of relief from the world’s leading investment banks involved in underwriting securities offerings and marking an important win for investors who are harmed by this type of class action litigation.
• Credit Suisse First Boston v. Billing, 127 S. Ct. 2383 (2007). In a case closely followed by Wall Street, the Supreme Court reversed a Second Circuit decision and ruled in favor of Mayer Brown’s clients, finding that investment banks and mutual funds could not be sued under antitrust law over losses from the crash of technology stocks when the “dot-com bubble” burst. Mayer Brown’s resounding success saved its clients billions of dollars in potential damages and ended the threat of crippling liability in this matter.
• Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 127 S. Ct. 1069 (2007). This case was an important development in the Supreme Court’s ongoing review of antitrust law. The Court overturned a Ninth Circuit ruling and unanimously agreed with Mayer Brown that the two-pronged Brooke Group test used in predatory-pricing cases also applies to predatory-buying claims, thus rejecting the Ninth Circuit’s more lenient standard.
• Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007). Among its most significant punitive damages decisions, the Supreme Court agreed with Mayer Brown’s argument that a jury may not punish a defendant for injuries suffered by non-parties. This case set a critical punitive damages precedent and marked the fourth punitive damages case that Mayer Brown has argued in the Supreme Court. (No other firm has argued more than one.)

Law360
Awarded “Appellate Group of the Year” in 2019, 2017 and 2016.

National Law Journal
Named for twelfth consecutive year (2008-2019) to the NLJ “Appellate Hot List,” which recognizes firms that practice “exemplary, cutting-edge appellate advocacy.”

Chambers USA
In 2021, Chambers USA noted that “[Mayer Brown] offers a wealth of knowledge in major business and public interest appellate work, with its considerable litigation strengths honed by decades of experience in the field.”

In 2021, Chambers USA quoted a client who noted, “‘The lawyers care about the quality of the work and they listen to and take clients' needs and opinions seriously.’”

In 2021, Chambers USA quoted a client who noted, “‘We trust the firm to handle high-risk, high-profile matters that are critical to our business.’”

Chambers USA observes that Mayer Brown’s “broad assembly of talented advocates is well known for its sophisticated work across a range of areas and disciplines, including securities, antitrust, IP, environmental and tax.”

Legal 500 US
Recognized as top-tier firm in the National Appellate category for fifteenth consecutive year (2007-2021).

Clients expressed to Legal 500 US that Mayer Brown’s Supreme Court and Appellate attorneys are “‘master strategists,’” and the “‘best at what they do – high-quality appeals.’”

Clients interviewed by Legal 500 US call Mayer Brown an “analytical powerhouse” and “praise the practice for being ‘unbelievably responsive and client-oriented,’ and for ‘advancing reasonable business interests.’”

This ‘excellent’ and ‘very deep’ team has attorneys where the ‘bench strength is a never-ending parade of the best and the brightest,’ including four former deputy solicitors general, and three former assistants to the solicitor general.”

“Mayer Brown’s team of superstars provides top-level legal analysis and writing, has a deep understanding of the Court, and business understanding is woven into its advocacy.”
Clients enthused, “‘No firm is better.’”

Peers and clients say the following about Mayer Brown’s appellate lawyers: “Dedicated, ‘go-to’ legal partners who bring a unique blend of style, personality and high-octane brain power to deliver superior advocacy; a team of superstars; outstanding appellate strategist[s] and brief writer[s]; super-intelligent and most helpful on all complex legal issues including the workings and procedures of the Supreme Court and other appellate courts.”

Benchmark Litigation
Ranked Tier 1 for the seventh consecutive year in the National Appellate category in the Benchmark Litigation Survey (2018).