Appellate and Critical Motions

An appellate powerhouse renowned for its award-winning appellate litigators, Dykema offers one of the largest and most experienced appellate practices in the nation. Clients quoted in Legal 500 US note the appellate team’s “increasingly robust bench combines with the wider firm’s broad US footprint to mark it as a key contender for major appeals.”

We built our reputation on almost a century of serving clients in “bet-the-company” litigation, making new law, and gaining the respect of courts across the country. Handling appeals in the U.S. Supreme Court, every federal circuit, and most states’ appellate courts, we have an outstanding track record of obtaining reversals of adverse decisions and preserving trial court achievements.

More than 650 appeals in the last decade.

We know our audience. In addition to experienced advocates, our team includes former appellate judges and former federal and state judicial law clerks, all of whom worked side-by-side with judges in the decision-making process and know how to present written and oral arguments that are most likely to persuade the courts.

It is not only our reputation that sets us apart, but also the high-caliber training of our appellate attorneys, widely regarded as among top litigators in the nation. Our skill has propelled our lawyers to positions of leadership, including positions on the Council of Chief Judges of State Courts of Appeals, the American Bar Association’s Council of Appellate Lawyers Executive Board and Standing Committee on Amicus Curiae Briefs, the Ninth Circuit Advisory Board, the Ninth Circuit Appellate Lawyer Representatives, as state bar association appellate practice section chairs, and as professors in top law schools across the country.

We are frequently brought in as embedded appellate counsel in trial court proceedings or for appeals after trial court resolution in matters handled by other firms. We work both on the frontlines and behind the scenes to advise our clients in:

shaping overall litigation strategy
preserving the record and arguments for possible appeal
preparing and persuading the trial court to adopt proposed jury instructions and verdict forms
preparing key pre-trial, trial, and post-trial briefing, including dispositive motions, motions in limine, motions for JNOV or new trial, and oppositions to such motions
developing innovative approaches to emerging policies, legal questions, and trends across multiple cases and jurisdictions, creating an overall strategy on an issue of significance to the client or their industry

shaping overall litigation strategy
preserving the record and arguments for possible appeal
preparing and persuading the trial court to adopt proposed jury instructions and verdict forms
preparing key pre-trial, trial, and post-trial briefing, including dispositive motions, motions in limine, motions for JNOV or new trial, and oppositions to such motions
developing innovative approaches to emerging policies, legal questions, and trends across multiple cases and jurisdictions, creating an overall strategy on an issue of significance to the client or their industry

Contacts

Jill M. Wheaton
Senior Counsel
James S. Azadian
Member

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Litigation

Latest News and Insights

Legal Alerts4.25.24

Decision Alert: Supreme Court Issues Unanimous Decision Establishing New Test to Determine State Action Liability in Lindke and O’Connor-Ratcliff

On March 15, 2024, the Court in Lindke v. Freed unanimously held that a government official may…

Learn more

Last Month at the Supreme Court Publications4.25.24

Last Month at the Supreme Court | April 2024

The April 2024 edition examines the Court’s decisions on First Amendment speech, administrative…

Learn more

Legal Alerts4.25.24

Supreme Court Focuses on Standing Issue in Abortion Medication Case

In the consolidated cases U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine and…

Learn more

Ninth Circuit Appellate Win for Harley-Davidson, Making New Law Involving Subject Matter Jurisdiction and the Class Action Fairness Act (CAFA).
Greene v. Harley-Davidson resolved an unsettled question in the Ninth Circuit about removing defendant's burden under CAFA and held that our client, Harley-Davidson, met its burden of showing the amount in controversy exceeds the amount necessary for federal court jurisdiction.
Ford Appellate Win in Michigan Involving Michigan Consumer Protection Act.
Jordan Cyr. v. Ford Motor Co. We represented Ford Motor Company in “mass actions” containing over 12,000 plaintiffs claiming breach of warranty and fraud in connection with the purchase of certain Ford automobiles. Among the claims made was an alleged violation of the Michigan Consumer Protection Act (MCPA). Ford moved to dismiss the MCPA claims on the grounds that Ford fell within an exception to the Act that prohibited statutory claims against regulated products or services. Ford also moved to dismiss the claims of non-Michigan resident plaintiffs on forum non conveniens grounds. The trial court denied both motions. Dykema filed an application for interlocutory review with the Michigan Court of Appeals, which was granted, and the Court of Appeals reversed and agreed with Ford’s arguments on both points. The Plaintiffs filed an application for leave to appeal with the Michigan Supreme Court, which denied review. Thus stands the Court of Appeals’ decision, which is favorable not just to Ford, but to the entire industry.
Seventh Circuit Overturned Denial of Midland’s Motion to Compel Arbitration of Putative Class Action.
Nettles v. Midland Funding, LLC. Although the issue of arbitration was the subject of appeal, Dykema raised Article III standing as a threshold issue. The Seventh Circuit agreed and held the plaintiff did not have Article III standing to raise claims brought under the Fair Debt Collection Practices Act (and state consumer law claims) and, thus, the District Court lacked jurisdiction. Accordingly, the Seventh Circuit remanded the case to be dismissed.
Dykema Appellate Team Obtains Rare Writ of Mandamus from the Fifth Circuit.
In re Huffines Partners Retail, L.P. We obtained a writ of mandamus from the Fifth Circuit commanding the U.S. District for the Northern District of Texas to expunge a notice lis pendens clouding title on a $200+ million tract of land and apartments in Collin County, Texas. The District Court had refused to remove the lis pendens, preventing the 9-figure sale of the assets at issue from closing. We convinced the Fifth Circuit the assets were shares in corporations, not direct interests in real property, thereby rendering the imposition of a lis pendens on these assets improper.
Ninth Circuit Affirmed Dismissal of Claims Brought Against Crafts Retailer Michaels, Adopting Arguments in Dykema’s Briefing.
Crafty Productions, Inc. v. Fuqing Sanxing Crafts Co. Plaintiffs were designers of craft products, asserting copyright infringement, trade dress infringement, unfair competition, and interference with contract against crafts manufacturers and retailers, including our client Michaels, a nationwide crafts retailer. After the district court dismissed all claims, we authored a joint brief on behalf of all appellees-defendants, supporting the dismissal, including copyright standing, “nonfunctionality” for trade dress claims, and preemption under the Copyright Act. The Ninth Circuit affirmed in an outright victory for Michaels.
Unanimous Supreme Court ADA Win.
Dykema represented the Fry family pro bono in the Supreme Court of the United States in a highly watched case involving alleged violations of the Americans with Disabilities Act. The case was dismissed at the district court level for failure to exhaust administrative remedies, and the Sixth Circuit affirmed. The Supreme Court ruled 8-0 in our clients’ favor, sending the case back to the trial court so our client could proceed with her action, after which the case settled.
Precedent Setting Ninth Circuit Nationwide Class Action Victory (En Banc).
In Re: Hyundai and Kia Fuel Economy Litigation. The Ninth Circuit granted Dykema’s petition for rehearing en banc and, upon rehearing by the en banc court, sided with Dykema’s automotive client in an 8-3 decision, while settling an important rule of law that affects every nationwide class action settlement across all industries.
Michigan Supreme Court Reversal Protecting Michigan Taxpayers Sets New Law.
Protecting Michigan Taxpayers v. Board of State Canvassers. Dykema represented clients seeking to place an initiated law on the ballot, which was previously denied by the Michigan Board of State Canvassers due to alleged irregularities by certain paid circulators. In a precedent setting decision, the Michigan Supreme Court ruled that otherwise valid signatures could not be rejected on the claimed basis, reversed the Board of Canvassers and ordered that the petitions be certified.

Landmark Decision for Ford in Sixth Circuit on Choice of Law Principles.
Standard Fire Ins. Co. v. Ford Motor Co. Dykema obtained a landmark published decision from the Sixth Circuit on choice of law principles. The court held that Tennessee law applied in this products liability action brought in Michigan, and because the Tennessee statute of repose barred the claim, the court affirmed the grant of summary judgment in favor of Dykema’s client Ford.

Retailer Client Wins Sixth Circuit Case involving Alleged Discrimination.
Amini v. Rite Aid Corporation. Plaintiff’s husband was a Rite-Aid employee who alleged harassment by his supervisor for both his age and his national origin. His employment was later terminated. Despite there having been negative comments made by his supervisors about both his age and his nationality, the district court granted summary judgment to Rite-Aid and the Sixth Circuit affirmed. As for the age harassment claim, the Sixth Circuit held that plaintiff had not established severe and pervasive conduct caused by the employee’s age. And as for the national origin harassment claim, similarly, the Sixth Circuit held that plaintiff failed to establish an intimidating, hostile, or offensive environment.
Win in California Stuntman Injury Case Applicable to Entertainment Industry.
Angelotti v. The Walt Disney Corp. We represented Disney and numerous employees and divisions sued by a stuntman who was injured while filming one of the Pirates of the Caribbean movies. The California trial court granted our motion to dismiss because the claims were barred by the exclusive remedy provisions in the Worker’s Compensation statute. The California Court of Appeal affirmed in a significant decision. There are many layers of employment involved in the movie industry, including independent contractors, “special employees,” and those working pursuant to “loan-out agreements,” so the holding that the plaintiff was an “employee” of Disney for worker’s compensation purposes makes good precedent for the industry.
First Virtual Oral Argument in Texas Fourth Court of Appeals Leads to Unanimous Win for Energy Client. Wheeler v. San Miguel. Following one of the first appellate oral arguments conducted via Zoom before the Texas Fourth Court of Appeals in San Antonio, we secured a win for client San Miguel Electric Cooperative, Inc. At issue was a key 2,200 acre lignite coal lease that San Miguel has been preparing to mine for over four decades. The lease contains the lignite reserves expected to fuel the San Miguel power plant for the next five years. Near the time mining was expected to begin, the plaintiffs filed suit against San Miguel to cancel the lease. San Miguel countersued for breach of the lease. Trial commenced following a partial summary judgment in San Miguel’s favor. San Miguel won a total victory when the jury determined that the plaintiffs breached the lease and awarded San Miguel damages on its counterclaim. The plaintiffs presented five complex issues on appeal that each involved distinct sets of facts and legal standards. The Court of Appeals unanimously affirmed.
Fifth Circuit Decision Grants Retailer Win Against Defamation Claims.
Khalida Smith v. Wal-Mart Stores. This case involved Wal-Mart security officers who misidentified an alleged thief, leading to the arrest of an innocent person. The wrongfully arrested individual sued Wal-Mart in the U.S. District Court for the Southern District of Texas on a wide variety of tort theories. The District Court granted Wal-Mart summary judgment on all claims, but the plaintiff appealed as to her defamation claim. Dykema’s appellate team was retained for the appeal, focusing its arguments on the “qualified privilege” affirmative defense, which requires a defamation plaintiff to establish actual malice. The Fifth Circuit agreed with and adopted all of Dykema’s arguments and granted a decisive affirmance in favor of Wal-Mart. This published opinion strengthens and develops the contours of the qualified privilege doctrine in a factual context likely to recur over time.
Illinois Appellate Court Reversal Leads to Multi-Million Dollar Class Action TCPA Settlement.
GM Sign, Inc. v. State Farm Fire & Casualty. Dykema won a reversal from the Illinois Appellate Court and vacatur of an order granting final approval of a multimillion dollar class action settlement in a case involving the Telephone Consumer Protection Act.
Consumer Finance Law Significantly Changed by Michigan Supreme Court in Win for JP Morgan Chase Appeal.
Kim v. JP Morgan Chase. Dykema obtained a partial reversal from the Michigan Supreme Court, a ruling that has significantly changed consumer finance law in Michigan. The Court accepted Dykema’s argument, made on behalf of our client Chase, that a violation of the foreclosure-by-advertisement statute does not render the foreclosure void, but merely voidable, and the borrower must show prejudice as a result of the violation. Incidentally, the Sixth Circuit then adopted the Kim test in its own federal cases that pertain to the same issue. These cases have set the bar for the literally thousands of foreclosure challenges that have followed.

Contacts

Jill M. Wheaton
Senior Counsel
James S. Azadian
Member

View All Professionals

Practices

Litigation

04.25.24

Decision Alert: Supreme Court Issues Unanimous Decision Establishing New Test to Determine State Action Liability in Lindke and O’Connor-Ratcliff

Legal Alerts

On March 15, 2024, the Court in Lindke v. Freed unanimously held that a government official may block members of the public from the official’s social media page because social media is not “public…
04.25.24

Last Month at the Supreme Court | April 2024

Last Month at the Supreme Court Publications

The April 2024 edition examines the Court’s decisions on First Amendment speech, administrative appeal deadlines, abortion medicine restrictions, and the Armed Career Criminal Act.
04.25.24

Supreme Court Focuses on Standing Issue in Abortion Medication Case

Legal Alerts

In the consolidated cases U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, the Supreme Court wrestles with an Article…
04.25.24

Supreme Court Takes on Armed Criminal Career Act and the Sixth Amendment

Legal Alerts

In Erlinger v. United States, the Supreme Court addresses whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were committed…
04.25.24

Supreme Court to Determine Whether Administrative Appeal Deadline Is Jurisdictional

Legal Alerts

In Harrow v. Dept. of Defense, the Supreme Court will decide whether the 60-day deadline to appeal a decision of the Merit Systems Protection Board (MSPB) under 5 U.S.C. § 7703(b)(1)(A) is…
04.25.24

Supreme Court to Determine Whether State Government Violated the First Amendment Through Coercion

Legal Alerts

In National Rifle Association v. Vullo, the Supreme Court considers when a state actor crosses the line from persuasion to coercion in encouraging private parties to engage in viewpoint…

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Contacts

Jill M. Wheaton
Senior Counsel
James S. Azadian
Member

View All Professionals

Practices

Litigation

Appellate and Critical Motions

Contacts

Related

Practices

Latest News and Insights

Contacts

Related

Practices

Decision Alert: Supreme Court Issues Unanimous Decision Establishing New Test to Determine State Action Liability in Lindke and O’Connor-Ratcliff

Legal Alerts

Last Month at the Supreme Court | April 2024

Last Month at the Supreme Court Publications

Supreme Court Focuses on Standing Issue in Abortion Medication Case

Legal Alerts

Supreme Court Takes on Armed Criminal Career Act and the Sixth Amendment

Legal Alerts

Supreme Court to Determine Whether Administrative Appeal Deadline Is Jurisdictional

Legal Alerts

Supreme Court to Determine Whether State Government Violated the First Amendment Through Coercion

Legal Alerts

Contacts

Related

Practices