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Appellate

Experience

We successfully represented the State of Alabama before the U.S. Supreme Court in a case involving the interpretation of the federal habeas corpus statute.
We filed an amicus curiae in the U.S. Supreme Court on behalf of a group of criminologists and other scholars successfully arguing that the Second Amendment protects an individual right to bear arms. Justice Breyer cited the brief repeatedly in his dissent.
We filed an amicus curiae brief in the U.S. Supreme Court on behalf of the National Association of Criminal Defense Lawyers successfully arguing that the Double Jeopardy Clause bars the Government from retrying defendants on acquitted counts even where the jury hung on factually related counts.
We filed an amicus curiae brief in the U.S. Supreme Court on behalf of a group of States in a significant case testing the federal constitutional limits on state judicial-recusal practice.
We successfully represented a large healthcare company before the Eleventh Circuit in its effort to enforce a provision of a $445 million securities class action settlement agreement that barred the former CEO’s claims for indemnification and advancement of his attorney’s fees.
We successfully represented the State of Alabama before the D.C. Circuit in ongoing "water wars" litigation with the State of Georgia.
We successfully represented a multinational corporation before the Eleventh Circuit in an appeal of a criminal Clean Water Act conviction.
We successfully represented a major pharmaceutical manufacturer in obtaining from the Alabama Supreme Court a reversal of an $81 million fraud judgment.
Successfully represented the nation’s largest construction-aggregates producer in an appeal to the Alabama Supreme Court concerning the proper scope of discovery in post-trial review of punitive damages awards under BMW v. Gore and subsequent cases. The Court agreed with us on every point, including a key question of first impression concerning when a defendants’ financial condition is irrelevant to the constitutionally-required punitive damages review.
We successfully represented a multinational automobile manufacturer before the Alabama Supreme Court in a contract dispute arising from company’s decision to locate a plant in Alabama.
We successfully represented a bank before the Tennessee Court of Appeals in a commercial lending case.
We successfully represented a multi-state automotive parts manufacturer before the Tennessee Court of Appeals, holding that interest income earned on funds invested in treasury securities was nonbusiness earnings and beyond the state’s constitutional power to tax as apportionable income.
We successfully defended a bank in an action brought by a joint venture partner claiming negligence and breach of contract based on bank’s distribution of loan proceeds to the joint venture entity.
In this case, the firm secured the reversal from the Alabama Supreme Court of an $81 million verdict against client GlaxoSmithKline (GSK). In October 2009, the court overturned fraud verdicts totaling nearly $275 million against three pharmaceutical companies, including GSK, stemming from actions brought by the State of Alabama. It alleged that GSK and other drug manufacturers had misrepresented published drug prices (such as the “average wholesale price” or “AWP”) used by state Medicaid programs to reimburse pharmacies and health care providers. In its opinion, the Alabama Supreme Court held that the State’s claims had no merit, adopting GSK’s argument that the State had full knowledge of how pharmaceutical companies published their prices and what those pricing terms meant, and that GSK priced its drugs in accordance with those well-known and long-established industry standards. The Alabama Supreme Court ruling was the first decision by any state supreme court to address an AWP-based fraud claim. As such, the Alabama cases were a bellwether for many other suits, setting a precedent that, according to AmericanLawyer.com in its October 16 story on the ruling, “completely shifts the momentum in the sprawling, multistate AWP litigation.” The case was so significant for the pharmaceutical industry that the influential blog “Drug and Device Law” named it the top Prescription Drug/Medical Device Decision of 2009. The blog reports on significant topics that arise in the defense of pharmaceutical and medical device product liability litigation, and is closely followed by leaders in the pharmaceutical industry.
On July 26, the United States Court of Appeals for the Fourth Circuit set aside an injunction that would have required four of TVA’s coal-fired power plants in Alabama and Tennessee to install environmental controls costing between $1-$3 billion. In a 34-page opinion, the Fourth Circuit unanimously concluded that the district court’s injunction “compromised principles of federalism by applying North Carolina law extraterritorially to TVA plants located in Alabama and Tennessee.” Kevin Newsom, who chairs BABC’s appellate litigation group, argued the case for the State of Alabama, which intervened (in support of TVA) to protect its sovereign interests. TVA was very well represented by in-house counsel Harriet Cooper.
Argued and won appeal involving scope and application of Voting Rights Act.
Achieved a significant victory in the Maryland Court of Appeals in a much-anticipated appellate decision concerning foreclosure law. The matter was initially appealed to the intermediate appellate court, but the Court of Appeals took jurisdiction over the appeal on its own motion, signaling the importance of the case. In a published decision, the Court unanimously adopted our position concerning when challenges to foreclosure sales were procedurally barred in Maryland.
In February 2010, we filed an amicus brief at the certiorari stage, urging the Supreme Court to take the case. After the Court granted certiorari, we filed a brief in August 2010 urging the Court to reverse the Ninth Circuit’s decision.

The case presented the question whether a court may, on “public policy” grounds, refuse to enforce an arbitration agreement that requires individual (as opposed to class) arbitration. The Court’s 5-4 decision in our favor will have profound implications for the drafting and enforcement of arbitration agreements nationwide.
Southern Life was sued for federal securities fraud and common law fraud arising out of its purchase of a debt instrument. At trial, Southern Life (then represented by different counsel) suffered an adverse jury verdict and a $31.7 million judgment; by the time the appeal was decided, the judgment, with interest, had ballooned to approximately $45 million. BABC handled Southern Life’s appeal to the U.S. Court of Appeals for the Eleventh Circuit, which reversed on two independent grounds.

The case was significant in multiple respects. Most obviously, it negated a $45 million liability for the client. But the case also addressed a novel securities-law issue. Addressing a matter of first impression, the Eleventh Circuit held that the district court had erred in instructing the jury that Southern Life, as the buyer of a security in an arm’s-length transaction, had a duty to disclose transaction-related information “directly” to its counterparty’s shareholders. The case attracted nationwide attention. Reflecting its legal and practical importance, the case prompted amicus curiae briefs by both the Washington Legal Foundation and a diverse group of corporate and securities-law professors from, e.g., Yale, Georgetown, Michigan, and Northwestern.
This appeal arose from a two-car, multiple death accident involving the alleged failure of a Michelin tire. The appeal involved a dispute over where the case was to be tried. Under Alabama law, damages in wrongful death cases are exclusively punitive damages, so the amount at issue is essentially unlimited. Our client prevailed on petition for mandamus which resulted in the transfer of the case out of a dangerous venue.  The case was later settled for a confidential amount.
Former officers and directors of General Motors were sued for design defect and wrongful death in Alabama state court. The suit was dismissed for lack of personal jurisdiction, and the plaintiff appealed. The appeal raised issues of first impression about the scope of personal jurisdiction under the Supreme Court of Alabama’s opinion in Ex parte DBI, 23 So. 3d 635 (Ala. 2009), which adopted a stream of commerce test for personal jurisdiction over products liability defendants. Adopting our arguments in full, the Supreme Court affirmed the dismissal. The Court held that officers and employees of a manufacturer are not subject to personal jurisdiction under the stream of commerce test. The Court’s decision “closed the door” on attempts by plaintiffs to sue individual employees when their corporate employers are judgment proof.
McDonald was the U.S. Supreme Court’s landmark decision holding that the Second Amendment right to keep and bear arms is incorporated against the States through the Fourteenth Amendment. On behalf of a group of scholars, BABC filed an amicus curiae brief in support of the winning side.

McDonald was the most anticipated decision of the Court’s 2009-10 term, and one of the most significant decisions in the Court’s recent history. CBS News ran a piece on their “law watch” website calling our amicus brief one of the “highlights” among the numerous amicus briefs that were filed.
This appeal arose from a two-car, multiple death accident involving alleged failure of a Michelin tire. Michelin removed the case to federal court, where it defeated the Pplaintiff’s motion to remand the case back to state court. The Plaintiff obtained permission to appeal the order denying remand, and the Eleventh Circuit affirmed. The Eleventh Circuit’s decision in Roe is significant because it prevents plaintiffs’ counsel from avoiding federal jurisdiction by failing to demand a sum certain where it is “facially apparent” that the controversy exceeds the amount in controversy necessary for diversity jurisdiction.
Successfully represented commercial entity in an appeal involving contractual dispute with customer.
Persuaded Sixth Circuit to hold that the Federal Railway Safety Act precluded an action under the Federal Employers’ Liability Act relating to the use of track ballast.
Persuaded the appellate court to vacate damages award and remand for a new trial on damages in product liability case.
Successfully defended trial court’s denial of a preliminary injunction in price-discrimination action.
Argued case before the Kentucky Supreme Court on behalf of the Governor of Kentucky involving the constitutionality of bicameral legislative confirmation requirements for executive-branch appointees.
Persuaded the First Circuit to vacate punitive-damage award in defamation action.
Assisted in appeal involving the applicability of attorney-client privilege to communications between a corporation and its former subsidiary.
Argued actual innocence case before the Seventh Circuit. Client eventually released from prison.
Obtained dismissal of federal action alleging racial discrimination in the disbursement of state agricultural funds. Court agreed that purported statutory abrogation of state sovereign immunity exceeded congressional powers.
The Alabama Supreme Court unanimously affirmed a $2 million judgment in favor of Alabama's 911 Board against T-Mobile for failing to pay 911 fees on prepaid cellular phones. Partners in the firm’s Huntsville office served as deputy attorneys general in this litigation. The Alabama 911 Board was created to collect 911 service charges from cellular service providers with customers in Alabama. T-Mobile filed a lawsuit challenging whether Alabama’s 911 law applied to its prepaid customers. The circuit court held that the law applied and entered a $2 million judgment in our client’s favor. The Alabama Supreme Court unanimously affirmed the trial court’s reasoning and conclusion of law. The case, besides definitively resolving the important statutory issue going forward, will result in over $8 million to the State's 911 system, when escrowed service charges from other cellular carriers are considered.
The Alabama Supreme Court unanimously affirmed a $2 million judgment in favor of Alabama's 911 Board against T-Mobile for failing to pay 911 fees on prepaid cellular phones. Partners in the firm’s Huntsville office served as deputy attorneys general in this litigation. The Alabama 911 Board was created to collect 911 service charges from cellular service providers with customers in Alabama. T-Mobile filed a lawsuit challenging whether Alabama’s 911 law applied to its prepaid customers. The circuit court held that the law applied and entered a $2 million judgment in our client’s favor. The Alabama Supreme Court unanimously affirmed the trial court’s reasoning and conclusion of law. The case, besides definitively resolving the important statutory issue going forward, will result in over $8 million to the State's 911 system, when escrowed service charges from other cellular carriers are considered.
Successfully defended a judgment for a mortgage servicer in an action to invalidate a lien under the Texas Constitution.
Successfully defended a post-foreclosure deficiency judgment for a commercial mortgage.
As appointed counsel, obtained reversal of a summary judgment against a prisoner claiming deliberate indifference to medical needs.
Obtained reversal of a judgment against a corporate taxpayer subject to an unconstitutional sales tax.
Successfully defended a judgment for an EIFS manufacturer on product-liability and fraudulent-suppression claims.
Successfully defended an order compelling arbitration of insurance claims.
Successfully defended summary judgment for mortgage servicer and mortgagee in borrower's suit to avoid foreclosure.