Appellate Litigation

Venable’s appellate team has won high-stakes cases in courts across the country, up to and including the United States Supreme Court. Its roster includes clerks of federal and state appellate courts, presidents of state and local bar associations, and a host of experienced practitioners. These attorneys have argued before state appellate courts, the federal circuit courts of appeal, and the Supreme Court of the United States. Their thoughtful, creative arguments have led to precedent-setting victories for clients across our many industries and practice areas.

United States Supreme Court

• Served as counsel of record on the petition for certiorari in Seven County Infrastructure Coalition v. Eagle County (2024), which the U.S. Supreme Court heard in its October 2024 term. The Court’s pending decision will address whether the National Environmental Policy Act requires agencies to consider environmental impacts beyond the proximate effects of actions within their jurisdiction
• Argued United States National Bank Association v. The Village at Lakeridge, LLC, 583 U.S. 387 (2017), a case addressing the standard of review that should be applied in determining whether a creditor is an “insider” under Title 11 of the Bankruptcy Code
• Served as counsel in Zivotofsky v. Kerry, 576 U.S. 1 (2015), an important case addressing whether the president has exclusive power to grant formal recognition to foreign sovereigns; and whether Congress may command the president to issue contrary recognition decisions
• Successfully argued in Howard Delivery Service, Inc. v. Zurich American Insurance Co., 547 U.S. 651 (2006), that Section 507(a)(5) of the Bankruptcy Code does not afford priority to claims for unpaid premiums owed under workers’ compensation liability insurance. The Court held that such premiums are payments for tort liability, rather than wage substitutions, and should be accorded equal priority equal to that of claims from other creditors
• Won reversal in Lincoln Property Co. v. Roche, 536 U.S. 81 (2005), a case that addressed what a named defendant must do to prove diversity of citizenship in a removal action under 28 U.S.C. §‌ 1441. In a unanimous decision, the Court held that a named defendant need not affirmatively prove the nonexistence of a potential in-forum defendant before removing a case to federal court
• Secured an important victory for a design and construction firm in BE & K Const. Co. v. NLRB, 536 U.S. 516 (2002), establishing important protections for employers who bring claims against unions for violating labor laws. There, the Court held that such litigation is constitutionally projected and cannot be considered an unfair labor practice unless it is objectively baseless
• Won reversal of a multi-million-dollar judgment against our client in Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205 (2000), a Lanham Act infringement case hailed as the most important trade dress case of the early 2000s by Legal Times. In a unanimous opinion, the Court established the important intellectual property rule that product design is not distinctive trade dress unless it carries secondary meaning
• Successfully argued in Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990), that a custodian of a child may not invoke the Fifth Amendment privilege against compelled self-incrimination to resist an order of a juvenile court to produce the child in her care. There, the Court held that the state’s interest in ensuring the care and safety of a child in need of assistance was a legitimate, noncriminal regulatory interest—and that the state’s efforts to verify the child’s welfare was unrelated to criminal law enforcement
• Drafted and submitted amicus briefs in high-profile Supreme Court cases addressing the scope of federal wetland jurisdiction under the Clean Water Act; the scope of the Antiquities Act; excessive force under the Fourth Amendment; efforts to rescind Deferred Action for Childhood Arrivals (DACA); the consistency of state laws limiting animal cruelty with the Dormant Commerce Clause; state efforts to purge voter rolls in violation of the National Voter Registration Act; and many more

Federal Circuit Courts of Appeal

• Successfully defended the dismissal of a restitution claim in Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), a case that addressed whether federal or state common law governs the availability of equitable remedies under state consumer protection laws. There, the Ninth Circuit accepted Venable’s argument that a federal circuit sitting in diversity applies traditional federal equitable principles—and that plaintiffs must show that they lack an adequate remedy at law as a prerequisite for equitable relief
• Won affirmance of a jury verdict in favor of the defendant in Golan v. FreeEats.com, 930 F.3d 950 (8th Cir. 2019), a case that presented novel questions involving the Telephone Consumer Protection Act. There, a class of plaintiffs sued our client, a sponsor of a Christian-themed movie, for TCPA liability based on emails promoting the film sent by third parties, requesting over $1.6 billion in damages. The appellate court accepted our arguments, holding that direct liability does not extend to sellers who do not personally place advertising calls, and that the requested damages violate the due process clause
• Secured a victory in Cox v. SNAP, Inc., 859 F.3d 304 (4th Cir. 2017), a breach of contract action brought by our client against a defendant that breached a contractual stock repurchase option. On appeal from a summary judgment ruling in the plaintiff’s favor, the defendant argued that it had no obligation to repurchase stock options because it never issued those options in the first place. The Fourth Circuit affirmed, holding that a condition precedent is excused when a party wrongfully fails to bring it about
• Secured the post-trial dismissal of a $600 million lawsuit brought by an internet service provider against a coffee producer and its parent corporation in Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712 (4th Cir. 2015). The internet provider alleged that the defendants had sent hundreds of thousands of emails advertising a coffee brand. But both the district court and the appellate court accepted Venable’s argument that the plaintiff had intentionally induced the litigation by creating fake email addresses and embedding them in websites to attract automated emails
• Defended the dismissal of federal enforcement action on account of a federal government agency’s misconduct during discovery in the Ninth Circuit
• Defended the dismissal with prejudice of trade secret misappropriation and related claims in excess of $50 million on behalf of an Italian software company in the Ninth Circuit

State Supreme Courts

• Persuaded the Maryland Supreme Court in Cushman & Wakefield v. DRV Greentec, LLC, 203 A.3d 835 (Md. 2019), that a successor landlord is not bound by his predecessor’s covenant to pay commissions to a real estate broker upon the renewal of a lease. In a case of first impression, the high court accepted Venable’s argument that a commission obligation does not run with the land, and that the successor’s acceptance of the property “subject to” the lease is insufficient to assume such a covenant
• Briefed and argued four cases before the Minnesota Supreme Court defending the state’s first copper-nickel mine, which produces critical metals for use in industry and clean energy. See, e.g., Matter of Denial of Contested Case Hearing Requests, 993 N.W.2d 627 (Minn. 2023); Matter of NorthMet Project Permit to Mine Application Dated December 2017, 959 N.W.2d 731 (Minn. 2021)
• Overturned large punitive damage awards ($200 million, $56 million, $40 million, and $9 million in Maryland and a $55 million award in a Tennessee federal court), all of which resulted in no tort liability against the defendants
• Overturned Maryland's unemployment compensation rules for strikes at multisite facilities
• Overturned a Michigan statute restricting the size of interstate freight trains