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Supreme Court & Appellate Litigation

O’Melveny’s appellate team brings creative strategic thinking, persuasive legal writing, and skilled oral advocacy to solve problems for clients at all levels of the judiciary, federal and state.

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O’Melveny’s Supreme Court and Appellate Litigation practice solves high-stakes problems for clients in every type of court, regulatory agency, and arbitral tribunal. Our lawyers argue almost every Term in the US Supreme Court and have filed merits and amicus briefs in scores of cases before the Court in the last two decades. We have successfully litigated in every federal court of appeals as well as state supreme and intermediate courts nationwide. We work with clients at all stages of litigation—from dispositive motions in trial court to merits briefing and argument in courts of last resort—to develop and present cutting-edge legal arguments designed to persuade generalist judges.

With experience arguing hundreds of cases before appellate courts, our appellate litigators help develop new law—we are not afraid to tackle issues as a matter of first principles and persuade courts to rebuild the law from the ground up. Our team includes high-ranking veterans of the US Solicitor General’s office and other Department of Justice divisions, as well as former clerks for Supreme Court Justices and judges on every US federal court of appeals. We work in unison with litigators across the firm’s practice and industry groups, giving clients the benefit of our collective experience in virtually every area of law.

Supreme Court Practice. Our track record before the US Supreme Court, where O’Melveny argues cases almost every term, includes numerous precedent-setting victories. Our bench of veteran Supreme Court lawyers has collectively argued more than 150 cases before the Justices, often appearing multiple times a Term. A recent study pronounced O’Melveny’s briefs the “most influential” in helping to shape the Court’s analysis.

We have extensive experience with every aspect of Supreme Court practice, from briefing and arguing merits cases to seeking and opposing certiorari on behalf of clients to formulating and executing amicus curiae strategy and representing amici at all stages. Our team includes former Deputy Solicitor General of the United States Michael Dreeben, one of the nation’s most experienced and skilled Supreme Court advocates—and a member of a small club of lawyers who have made over 100 arguments before the High Court. We also draw on the talents of accomplished appellate advocates including Chair Jonathan Hacker and Jeffrey Fisher, who has argued 40 cases in the Court and holds a place among the National Law Journal’s “100 Most Influential Lawyers” in America.

Appellate Practice. Appellate litigation at O’Melveny extends far beyond the Supreme Court. We have successfully argued cases in every federal appellate circuit and state courts of last resort nationwide, including courts where the most significant business cases are litigated such as the U.S. Courts of Appeals for the D.C., Second, Ninth, and Federal Circuits; the New York Court of Appeals and Appellate Division; and the Delaware Supreme Court. We file briefs in state and federal trial and appellate courts and formulate strategy and arguments seeking and opposing discretionary appeals from higher courts, always bearing in mind the appellate lawyer’s primary task of “translating” complex technical questions to the generalist judges who will review and decide them.

Trial Court Practice. Our appellate work often starts long before the filing of any appeal—or even before the filing of an answer. Our appellate lawyers work closely with clients and trial teams at every step of a litigation to identify and craft arguments for dismissal or summary judgment and to draft motions of all kinds before, during, and after trial. We have particular experience serving as embedded trial counsel in high-exposure, complex civil cases in various state court systems. Our appellate attorneys often take a lead role in developing argument, crafting strategy, and drafting briefs—at the dismissal, summary judgment, trial, and post-trial stages. We work closely with trial counsel to ensure that important appellate issues that arise during trial are properly framed and preserved for appeal, and help shape the case in a manner most favorable to achieving our clients’ desired outcomes.

Whatever the venue, issue, or subject matter, the unrivaled skill and experience of our appellate lawyers ensures that we can provide forceful advocacy, nuanced advice, or creative solutions to meet our clients’ needs.

American Airlines

Successfully defended American in the Fifth Circuit against an ERISA lawsuit alleging its 401(k) plan offered an investment option that benefited the company more than its employees. Not only did the win allow our client to avoid a multimillion-dollar settlement and potentially adverse verdict, but it ensured that American could continue offering a popular Credit Union Option to its participants.

Airlines for America

Secured a favorable outcome related to the government’s setting of fee levels for inspection programs of goods shipped through U.S. ports. Despite a difficult standard of review applicable to agency challenges, the D.C. Circuit ruled in our favor on an issue crucial to our clients, holding that the Department of Agriculture cannot continue to collect fees to fund a reserve after a certain date.

Century Indemnity Company

Prevailed in a significant Second Circuit decision overruling controversial precedents that had capped reinsurers’ liability for defense costs. Under the Second Circuit’s 1990 Bellefonte rule, the total amount of reinsurance coverage presumptively included defense costs, even if the reinsured policy paid defense costs in addition to its indemnity limits. We persuaded the court to take another look at this widely criticized precedent and adopt the common-sense rule that reinsurance certificates generally treat payment of defense costs the same way the reinsured policy treats them.

China Agritech

In China Agritech Inc. v. Michael H. Resh et al., 138 S. Ct. 1800 (2019), we secured a unanimous Supreme Court victory against efforts to toll the statute of limitations for absent class members, imposing a check on serial class actions. In a rare accomplishment in securities litigation, O’Melveny twice defeated motions for class certification and secured dismissal of the third case on statute of limitations grounds. When the Ninth Circuit reversed that dismissal, the Court reinstated our victory, holding that putative class members who decline to join an existing suit or promptly file an individual action may not commence a class action anew beyond the statutory limitations period.

Chubb Group

In a landmark Delaware Supreme Court ruling, O’Melveny secured a decision that Chubb was not obligated to defend Rite Aid Corp. against lawsuits accusing the drugstore chain of contributing to the nationwide opioid epidemic.

City of Austin

In City of Austin, Texas v. Reagan National Advertising of Texas Inc., 142 S. Ct. 1464 (2022), a victory for tens of thousands of municipalities with sign ordinances, we persuaded the Supreme Court not to strike down a City of Austin billboard regulation that barred the digitization of off-premises signs—a ruling that found the city’s measure content-neutral and not a First Amendment violation.

Google

Stepping in just before trial, won a jury verdict for the tech giant, defeating patent infringement claims against Google’s popular smart-home Nest Hub devices.

Industry-leading pharmaceutical company

Convinced the Oklahoma Supreme Court to reverse a trial court’s ruling that called for our client to pay US$465 million for nuisance abatement.