Appellate and Critical Motions

Preparing for an appeal should begin well before the trial starts. Attorneys in our appellate and critical motions practice are available to consult with clients before, during, and after trial. We advise our clients and their trial teams (both within Winston and otherwise) on how to identify and preserve issues for appeal, how to create a strong record, and how to navigate issues of interlocutory review.

In this capacity, we work closely with clients and trial lawyers to decide how best to present key legal issues in motion practice to increase the odds of a favorable result that will stand up in the appellate court. We often assist in preparing and arguing dispositive motions and other important matters — including, for example, motions to dismiss, class certification motions, motions relating to attorney-client privilege and the work product doctrine, jurisdictional motions, motions to admit or exclude expert testimony, and motion practice relating to potential awards of punitive damages. And if the trial leads to an unfavorable result, we are well-positioned to jump in on post-trial motions, laying the groundwork for appeal.

Our recent critical motions engagements have included the following:

Refco Securities Litigation. We represent the audit firm Grant Thornton LLP in the extensive securities fraud and tort litigation that followed the disclosure of a fraud by Refco and its senior executives. As critical motions counsel, our lawyers have briefed several motions to dismiss and other important motions in these cases.

Parmalat Securities Litigation. We also represent Grant Thornton LLP, as U.S. member firm of Grant Thornton International, in the consolidated securities fraud and professional liability litigation arising out of the collapse of Parmalat, the Italian dairy conglomerate. The cases involve important issues of vicarious liability for international accounting organizations and their member firms. In this matter, we have prepared six different motions to dismiss and a variety of other significant motions.

Wyeth. We represent Wyeth and Wyeth Pharmaceuticals, Inc. in products liability litigation relating to hormone replacement drugs. We have prepared numerous motions for summary judgment involving issues such as the scope of federal preemption of common law product liability claims, motions in limine, bifurcation motions, and other important pre-trial motions. We also have drafted jury instructions and jury verdict forms.

Hyundai Patent Litigation. We represent Hyundai Motor America in a series of cases alleging infringement of various patents related to website design. In addition to drafting and arguing key jury instructions, we have drafted numerous critical motions, including motions for summary judgment; motions to exclude or admit key evidence; motions for judgment notwithstanding the verdict and non-enforcement based on inequitable conduct; and motions for new trial.

Verizon. We recently won a major patent infringement suit on behalf of our client Verizon against Vonage Corporation. Members of our group served as motions counsel before and during trial. In that capacity, we briefed key issues such as claim construction, admissibility of critical expert testimony, and the validity of trial subpoenas directed at Vonage’s senior management.

Charles Schwab & Co.  We represented Charles Schwab & Co. in a lawsuit alleging trade secrets misappropriation, computer fraud, and conversion against former employees and their new corporate employers.  We successfully opposed motions to dismiss and motions for summary judgment from several defendants and defeated a claim that there was no jurisdiction over various off-shore defendants that allegedly misappropriated Schwab’s proprietary material.