Appeals and Strategic Counseling
Appeals and
Strategic Counseling
Weil’s Appeals and Strategic Counseling practice handles appeals before the U.S. Supreme Court and federal and state appellate courts, as well as legal issues before trial courts and agencies.
Notable Representations, Key Contacts
2023 ‘Appellate Hot List’ Honoree
The National Law Journal
At every juncture, we provide crisp, compelling, and engaging written and oral analysis and advocacy with unparalleled responsiveness. From our seasoned and heralded leaders to our well-credentialed counsel and associates, members of the Appeals and Strategic Counseling practice bring precision, creativity, and judgment to bear on our clients’ hardest issues and most critical problems.
Where We Excel
Our team has experience in all areas of commercial litigation, both substantive and procedural, with particular expertise in bankruptcy, intellectual property, antitrust, securities, and constitutional law.
What We Do
We are often called upon to litigate questions of first impression and develop or refute novel legal theories, interpret complex statutes and regulations, and cut through scientific, technological, and economic issues in a clear and accessible way.
Working seamlessly with other Weil litigators, we also provide overarching strategic advice throughout the lifespan of our clients’ controversies, helping to achieve litigation and business objectives while mitigating risk.
Members of our practice regularly participate in lawsuits—often class actions or other complex commercial litigation—before, during, and after trial. We also help assess whether litigation is advisable, provide strategic counseling regarding threatened and ongoing litigation, and prepare white papers and similar analyses outside the litigation context.
Selected Representations
Antitrust – Minor League Baseball Teams
Weil successfully represented a number of Minor League Baseball teams in connection with high-profile litigation, including a cert petition before the U.S. Supreme Court, adverse to Major League Baseball and several of its clubs regarding MLB’s consolidation of the minor leagues, which could have resulted, absent a highly favorable settlement we reached while the appeal was pending, in a Supreme Court decision invalidating the MLB’s longstanding “exemption” to the U.S. antitrust laws.
Restructuring – Kieran Buckley
Weil secured a 9-0 U.S. Supreme Court victory on behalf of our client, Kieran Buckley, who has been fighting to recover his losses since he was defrauded nearly 15 years ago, when the sellers of a property he purchased failed to disclose material defects in the house. The question presented in the Supreme Court was whether 11 U.S.C. § 523(a)(2)(A), which bars an individual debtor from discharging a “debt … for money … obtained by … actual fraud,” covers a debtor’s liability for money obtained by the actual fraud of their agent, even if the debtor did not personally perpetrate the fraud but is vicariously liable for it and shared in the proceeds. The Supreme Court, in an opinion written by Justice Barrett, unanimously affirmed the Ninth Circuit decision below that such a debt is non-dischargeable, signaling that the Bankruptcy Code cannot be used as a shield for those who profit from fraud.
Governance – Washington State University and Oregon State University
Weil won a major victory before the Supreme Court of Washington State, on behalf of Washington State University and co-plaintiff Oregon State University, in a high-profile dispute regarding the future of the Pac-12 athletic Conference. The court’s ruling ensures that our clients have sole control over the Pac-12 moving forward, following the announced departure of 10 members from the Conference, even as the departing members sought to continue serving on the Conference’s board and influencing its governance and finances.
Following appellate briefing led by Weil, the court denied our adversaries’ motions for discretionary review of a lower court’s order that denied defendants’ motions to dismiss and granted our clients’ motion to preliminarily enjoin the 10 departing member universities from continuing to serve on the Conference’s board. This is the third consecutive victory Weil has secured for its clients in this dispute, following earlier rulings in which the trial court granted our request for a temporary restraining order and a preliminary injunction.
Privacy – BNSF Railway
On behalf of BNSF Railway, Weil vacated a $228 million class action damages award and secured a new trial on damages in the first case ever to go to trial under the Illinois Biometric Information Privacy Act (BIPA). Weil served as lead appellate and strategic counsel to BNSF, which retained Weil before trial to take the lead on legal and appellate issues (a different firm served as lead trial counsel).
Before trial, Weil argued that statutory damages under BIPA are discretionary and must be determined by the jury. The court disagreed and, after the jury returned a liability verdict in favor of the plaintiffs, the court entered a $228 million damages award, which was the maximum plaintiffs could receive under BIPA.
In post-trial motions, Weil asked the court to vacate the award and grant a new trial on damages, relying in part on an intervening Illinois Supreme Court decision recognizing that statutory damages awards under BIPA are discretionary, just as Weil had argued before and during trial. In light of this decision, and following oral argument led by Weil, the district court granted BNSF a new trial on damages, vacating the prior $228 million award and agreeing with Weil that damages are discretionary and should be determined by the jury. With a new trial on damages set, the parties entered into a settlement.
Patent – Comcast Cable Communications
WhereverTV had sued Comcast for allegedly infringing, through Comcast’s X1 platform, a patent claiming an interactive program guide that integrated both linear cable channels and other content sources. Originally filed in 2018, the case was finally set for a jury trial in April 2023.
Working alongside the client’s lead trial team at another firm, Weil guided the legal strategy with a view toward preserving important issues for any appeal, and played a lead role in important motion practice before and during trial, which we attended.
Weil prepared and filed a motion for judgment as a matter of law at the close of evidence, arguing that WhereverTV had failed to carry its burden of proving infringement as to two claim elements. The following day, after both sides rested (and plaintiff declined to present a rebuttal case), the court heard argument from Weil on the motion while the jury was at lunch. In dramatic fashion, the court granted Comcast’s motion and discharged the jury before closing arguments were delivered.
Stockholder – Brookfield Asset Management
Weil won a once-in-a-generation interlocutory appeal for Brookfield and certain of its affiliates in a stockholder litigation before the Delaware Supreme Court that reversed Delaware’s oft-criticized 2006 precedent, Gentile v. Rosette – a ruling that will have a seismic impact on Delaware corporate law. The court’s unanimous, 52-page ruling struck down Gentile’s controversial “dual-natured” claims precedent, whereby certain claims may be both direct and derivative. In its opinion, the court unanimously held, in agreement with Weil’s arguments, that: “[W]e can properly say that the practical and analytical difficulties courts have encountered in applying [Gentile] reflect fundamental unworkability and not growing pains[.]”
Contract – NBA All-Star Zion Williamson and Creative Artists Agency
Weil has been leading the charge before the trial and appellate courts for NBA All-Star Zion Williamson and his agency, Creative Artists Agency (CAA), in multi-jurisdictional litigation in North Carolina federal court and Florida state court against his former agent, Prime Sports Marketing (PSM). The disputes collectively implicate more than $100M.
In North Carolina, where Zion had commenced an offensive case, PSM separately filed counterclaims citing breach of contract, fraud, unjust enrichment, and misappropriation of trade secrets. In 2022, Weil won a complete summary judgment victory when the court dismissed PSM’s contract-based counterclaims because the court earlier deemed the underlying contract null and void, and dismissed PSM’s trade secret claims because the information PSM claimed to be trade secrets were not protectable trade secrets under NC law. PSM has appealed both decisions to the Fourth Circuit, which heard oral argument in October 2023.
Meanwhile, in Florida, where Weil had already secured an appellate victory for Williamson that dismissed all claims brought against him by PSM, we won a February 2023 summary judgment victory for CAA and several other co-defendants that dismissed all claims against them, as well.
Restructuring – Sears Holdings
Weil secured a significant Second Circuit victory for Sears Holdings in a $700M+ dispute arising in its chapter 11 restructuring that clarified an important issue of first impression regarding the valuation of Sears’s inventory – a major question in any retail bankruptcy.
Constitutional – Daniel McDonnell
Weil won a unanimous victory on an important and novel Fourth Amendment issue following oral argument in the Maryland Supreme Court, which held that an individual may withdraw consent to a search of his digitally stored personal information even after the government has made a forensic image of that information. The State of Maryland argued that because government agents had made a forensic image of the defendant’s laptop with his consent, the defendant had forfeited all of his privacy and Fourth Amendment interests in his personal information and could not thereafter revoke his consent to a search of that information. The Maryland Supreme Court disagreed, confirming that the ministerial act of making a forensic image does not affect an individual’s ability to withdraw his consent to a search.
This case has significant implications in the area of digital searches, where agents routinely seek individuals’ consent to sweeping and invasive searches of large swaths of personal information stored on digital devices. Several lower courts have ruled against defendants on this issue, but the Weil team was able to persuade the Maryland Supreme Court that controlling precedent from the U.S. Supreme Court dictated a different outcome.
Key Contacts
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Shortcut Links
Recent Announcements
- Robert Niles-Weed Named a 2024 Best LGBTQ+ Lawyer Under 40 by The National LGBTQ+ Bar Association Firm Announcement — March 18, 2024
- Weil Wins Fifth Circuit Affirmance of Ruling Finding Appeals Challenging Confirmation of Fieldwood Energy’s Chapter 11 Plan Are “Statutorily Moot” Litigation Win — February 23, 2024
- Weil Receives Two Recognitions at the 2024 Florida Legal Awards Firm Announcement — February 05, 2024
Weil “has seen its appellate profile rocket over the past two years.”
Legal 500 2023
Clients note, “They're uniformly excellent. It's a firm with a lot of depth: the bench strength and capabilities are second to none."
Chambers USA 2023
Awards and Recognition, Speaking Engagements, Latest Thinking, Firm News & Announcements, Recent Announcements
Awards and Recognition
- Weil Named a “Leading” Firm for Nationwide Appellate Law Award Brief — Chambers USA 2023
- Weil Named a “Leading” Firm for Appellate: Court of Appeals Award Brief — Legal 500 US 2023
- Weil Named a “Leading” Firm for Appellate: Supreme Courts Award Brief — Legal 500 US 2023
- Weil Named to the Appellate Hot List Award Brief — National Law Journal 2021 and 2023
Speaking Engagements
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Supreme Court Review: Recent Decisions and Their Potential Implications for Bankruptcy Lawyers
Speaker(s):
Zack Tripp
December 2, 2023 — Scottsdale, AZ — Weil Appeals and Strategic Counseling Co-Head Zack Tripp participated in a panel entitled “Supreme Court Review: Recent Decisions and Their Potential Implications for Bankruptcy Lawyers,” as part of the American Bankruptcy Institute’s 2023 Winter Leadership Conference. Using cases decided from the Supreme Court’s last term, the panel discussed the Court’s general approach to deciding cases, including bankruptcy cases, and what those decisions mean for the bankruptcy and larger legal community.
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Supreme Court Crystal Ball Briefing
Speaker(s):
Mark A. Perry
May 17, 2023 — Weil Appeals and Strategic Counseling Co-Head Mark A. Perry led a discussion of the complex, newsworthy and possibly controversial cases before the U.S. Supreme Court in a panel discussion sponsored by the New England Legal Foundation.
Latest Thinking
- Infringement Policy Lessons From 4th Circ. Sony Music Ruling Publication — Law360 — By Benjamin E. Marks — PDF — March 15, 2024
- The Fourth Circuit Clarifies the Applicable Standards for Holding Internet Service Providers Vicariously and Contributorily Liable for Copyright Infringement by Subscribers Alert — Intellectual Property & Media — By Benjamin E. Marks — PDF — February 27, 2024
- Panoramic – Administrative & Public Law USA Publication — Law Business Research Ltd. — By Mark A. Perry, Josh Wesneski and Mark Pinkert — PDF — January 25, 2024
- Weil's SCOTUS Term in Review Publication — By Mark A. Perry, Zack Tripp, Greg Silbert, Josh Wesneski, Crystal Weeks and Shai Berman — PDF — July 13, 2023
- Supreme Court Clarifies and Augments Title VII Religious Accommodation Standard: De Minimis No More Alert — Employer Update — By John P. Barry, Celine Chan and Elizabeth Casey — PDF — July 06, 2023
Firm News & Announcements
- Robert Niles-Weed Named a 2024 Best LGBTQ+ Lawyer Under 40 by The National LGBTQ+ Bar Association Firm Announcement — March 18, 2024
- Weil Wins Fifth Circuit Affirmance of Ruling Finding Appeals Challenging Confirmation of Fieldwood Energy’s Chapter 11 Plan Are “Statutorily Moot” Litigation Win — February 23, 2024