Practice

Appellate

Achieving efficient and successful appeal outcomes

Our team is comprised of appellate advocates who have represented hundreds of clients in federal and state appellate courts nationwide, including the U.S. Supreme Court, numerous U.S. Courts of Appeals, and the highest and intermediate appellate courts of many states.

Foley Hoag attorneys have a proven track record of successful appellate results for civil and criminal clients at all stages of appeal, from pre-trial rulings through post-trial matters. Our attorneys also regularly submit persuasive briefs on behalf of amicus curiae in the U.S. Supreme Court and federal and state appellate courts.

We devote the same level of attention and detail to every appeal we handle, regardless of client or issue. From constitutional litigation and complex shareholder disputes to challenges to administrative agency decisions or disagreements over routine contracts, we know every appeal is of the utmost importance to the parties involved.

APPELLATE ADVOCACY
Our appellate attorneys have an insider’s perspective — many are former appellate clerks — and are widely respected in the field of appellate law, as contributing authors to leading appellate treatises and in demand at forums on recent appellate decisions. Our lawyers represent clients in the U.S. Supreme Court, seven state Supreme Courts and numerous U.S. Courts of Appeal.

Collaboration and precision are the hallmarks of our appellate advocacy: We work closely with our clients and trial counsel to shape a compelling appellate strategy, regardless of the result in the trial court or administrative agency below.

AMICUS REPRESENTATION
Effective appellate advocacy involves not just bringing or defending appeals, but understanding that appellate decisions involving other parties can establish precedents that significantly affect our clients’ businesses and interests. To maximize this strategic opportunity, our Appellate Practice regularly files amicus briefs for businesses, trade associations and advocacy organizations.

Our Appellate Practice maximizes these opportunities by filing amicus briefs that present the unique perspectives of our clients —whether businesses, trade associations and advocacy organizations — at both the state and federal level. Recent amicus briefs in high profile cases include those on constitutionality of the Affordable Care Act, the availability of post-patent expiration royalty rights, same-sex marriage, and the use of race in school assignment and college admissions. 

ADMINISTRATIVE APPEALS
Foley Hoag has a particular specialty in administrative law appeals —those involving governmental actions at federal, state and local levels. We have won appeals representing private clients contesting governmental actions, and won appeals defending state agencies and municipalities against such challenges. This diversity of experience allows us to craft effective appellate strategies that give our clients the strongest likelihood of success. 

Our appellate clients also benefit from our broad subject matter expertise, since a comprehensive understanding of complex (and often highly technical) statutes and regulations is essential to successful administrative law appeals. Our attorneys have achieved favorable appellate decisions on administrative law topics as diverse as Medicaid reimbursement, eminent domain, energy regulation, and ballot question approvals.

Areas of Focus

Our lawyers have a wide range of appellate experience, including:
  • Representation in dozens of federal and state appellate courts nationwide, including the U.S. Supreme Court and the U.S. Courts of Appeals
  • Representation on both civil and criminal appeals
  • Amicus representation
  • Administrative appeals

Experience

ADMINISTRATIVE LAW

  • Electric Utility Rates. We won a unanimous decision from the Massachusetts Supreme Judicial Court overturning a Department of Public Utilities order. The order would have allowed electric utility companies to impose an estimated $3 billion in additional charges on their customers. 
  • Education Ballot Question. We won a unanimous decision from the Massachusetts Supreme Judicial Court that overturned approval by the state Attorney General of a proposed ballot question to repeal the Common Core education standards in Massachusetts. 
  • Gaming Operations. We obtained victory for gaming operator Mohegan Sun in the Massachusetts Supreme Judicial Court. The ruling upheld the availability of judicial review of decisions made by the Massachusetts Gaming Commission.  

BUSINESS LAW
  • Freeze-Out Actions. Our firm secured a favorable decision for a majority stockholder and closely held corporation to disqualify opposing counsel in a freeze-out action brought by minority stockholders.
  • Class Action Defense. We obtained favorable rulings on behalf of Dell, Inc., from the Massachusetts Supreme Judicial Court dismissing multiple consumer class actions.
  • Consumer Protection Defense. We obtained dismissal of a constructive trust and Credit Repair Organization Act claims brought by a class of consumers of a non-profit credit repair organization against a national accounting firm, which was served as the non-profit’s former tax advisor and auditor, which the First Circuit affirmed on appeal. 
  • Trade Secrets. Won a unanimous decision from the Second Circuit affirming the dismissal of a trade secret complaint against a leading life sciences company.*
  • Asset Allocation. We represented a physician group in New York State Supreme Court Appellate Division, First Department, in a dispute involving a medical malpractice insurance carrier.
  • Default Judgments. Successfully appealed the grant of default judgment against a defendant in a civil lawsuit to the D.C. Circuit Court of Appeals.*

CIVIL RIGHTS LAW 
  • Affirmative Action. We filed an amicus brief with the U.S. Supreme Court on behalf of the Asian American Legal Defense and Education Fund (AALDEF) in Fisher I and Fisher II. These successive cases challenged the undergraduate admissions program of the University of Texas. The brief in Fisher II was cited in the Court’s majority opinion.
  • Racial Bias and Jurors. We filed an amicus brief in Commonwealth v. Williams, 481 Mass. 443 (2019) concerning racial bias affecting for-cause challenges to prospective jurors, on behalf a coalition including the Massachusetts Association of Criminal Defense Lawyers and the American Civil Liberties Union of Massachusetts.

INTERNATIONAL LAW
  • Foreign Sovereigns. Our firm has successfully represented numerous foreign sovereigns, including the United Republic of Tanzania, the Republic of Nicaragua, and the Republic of Ecuador, in obtaining affirmances from various federal appeals courts of the dismissal of claims made against them.
  • International Cultural Property. We won a precedent-setting victory for the Hellenic Republic (Greece) in the Second Circuit. The ruling stated that Greece’s Ministry of Culture and Sports cannot be sued in the United States for attempting to recover Greek cultural heritage property.
  • Arbitration. We advised the ministry of a foreign sovereign as amicus curiae in a Second Circuit appeal regarding the enforcement of an annulled arbitral decision.

LABOR LAW
  • Non-Compete. We obtained affirmance from the First Circuit on a preliminary injunction obtained on behalf of CVS Pharmacy. This enforced a non-competition agreement against a senior executive who left the company.
  • University Tenure. We secured a summary judgment on behalf of Harvard University of an allegation that a former faculty member was wrongfully denied tenure, and obtained unanimous affirmance from the First Circuit. 

 

LAND USE LAW

  • Environmental Zoning. Our firm obtained a unanimous ruling for the City of South Portland from the Maine Supreme Judicial Court, upholding a city zoning ordinance that prohibits bulk loading of crude oil onto ships in certain districts in South Portland’s harbor.
  • Sports Venue Land Use. We filed an amicus brief on behalf of the Boston Red Sox before the Massachusetts Supreme Judicial Court. This defended the Boston Redevelopment Authority’s right to use Jersey Street (then Yawkey Way) as an outdoor concourse on game days. The SJC unanimously affirmed the dismissal of the taking challenge.
  • Historic Preservation. Our lawyers filed amicus briefs for the National Trust for Historic Preservation in the Massachusetts Supreme Judicial Court and in support of certiorari before the U.S. Supreme Court, on the constitutionality of using public historic preservation funds to repair historic religious structures.  
  • State Agency Land Use. We obtained a victory for the Massachusetts Bay Transportation Authority (MBTA) when the Massachusetts Supreme Judicial Court affirmed the Land Court’s dismissal of a local municipality complaint, alleging that the century-old “prior public use” land use doctrine precluded MBTA from leasing a disused railroad right-of-way. 

 

PATENT LAW

  • Patent Ownership. We won a unanimous favorable ruling from the First Circuit on behalf of the Dana-Farber Cancer Institute. This affirmed a decision that Dana-Farber is the co-owner of multiple patents for novel cancer treating methods.
  • Patent Exhaustion. Our lawyers argued on behalf of the Biotechnology Industry Organization (BIO) as amicus before the en banc Federal Circuit concerning international and domestic patent exhaustion.
  • Trademark Rights. We obtained unanimous affirmance from the Federal Circuit upholding the cancellation of a service mark registered by a third party.

*Denotes representation handled by a current Foley Hoag partner prior to joining the firm.

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Our attorneys share their points of view on appellate matters.