On appeal, as in trial, our attorneys display tactical sophistication and a penchant for getting to the point. At Keker & Van Nest, our briefs have a tone that is scholarly and credible, yet also pragmatic, incisive and never boring.
eBay Inc. • Electronic Arts Inc. • •• • Intel Corporation • Major League Baseball Players Association • Qwest Corporation
To be effective, appellate lawyers must:
Work fruitfully and cooperatively with trial counsel
Craft jury instructions and post-trial motions that preserve the issues for possible appeal
Reframe the issues to maximum advantage
Tell a compelling story within the constraints of the applicable standard of review
Bolster doctrinal arguments with arguments about public policy and legislative intent
Challenge a ruling, not the judge who issued it
Know when to defend the trial court’s reasoning and when to suggest a simpler route to the same result
Write a brief that blends emotion and reason without sounding like a jury argument
Write clean, spare prose that says just enough
Our lawyers - most of whom have clerked for federal judges - have honed these skills and deployed them successfully in appeals and writ proceedings spanning the entire field of complex litigation.
Best Lawyers in America and Northern California Super Lawyers recognized Steven Hirsch for his work in Appellate Law. He was also recognized by legal-writing expert Bryan Garner as one of four “especially outstanding” appellate-brief writers in the nation.
Benchmark Litigation recognized Keker & Van Nest as a leading Appellate Firm in the Ninth Circuit.
The Recorder named Elliot Peters a 2010 Attorney of the Year for successfully representing the Major League Baseball Players Association before the U.S. Circuit Court of Appeals for the Ninth Circuit.
Cases of Note
San Mateo School Districts v. San Mateo County: We represented San Mateo County and its former treasurer against a $20 million suit brought by a group of San Mateo County school districts. Following the 2008 Lehman Brothers bankruptcy—in the midst of the nationwide financial crisis—plaintiffs filed suit against the County, alleging officials violated their fiduciary duties by investing too heavily in Lehman holdings. However we convinced a San Francisco Superior Court judge to dismiss the case on the grounds that the complaint failed to comply with state and county laws governing lawsuits against public entities.
Department of Justice v. Major League Baseball Players Association: We successfully represented the Major League Baseball Players Association in its high-profile battle with the U.S. government. In August 2009, an en banc panel of the U.S. Circuit Court of Appeal for the Ninth Circuit ruled that federal investigators unlawfully seized drug-testing records of more than 100 athletes. In September 2010, the court issued a revised opinion that upheld its ruling.
Chiron Corp. v. Genentech, Inc.: We represented Genentech, Inc. in a high-stakes patent trial. The plaintiff claimed our client's recombinantly engineered, “humanized” therapeutic for breast cancer infringed on the plaintiff's patent. We obtained a jury verdict invalidating the asserted patent on written description and enablement grounds. The verdict was later affirmed on appeal.
City and County of San Francisco v. Music Concourse Community Partnership: We successfully defended the Music Concourse Community Partnership from two consolidated actions. The actions sought to halt the creation of a $50 million underground parking facility in San Francisco's Golden Gate Park. After two bench trials, the court declined to issue an injunction which was upheld by the California Court of Appeal.
Cadence Design Systems, Inc. v. Avant! Corporation: We secured an injunction, restitution and settlement monies totaling $460 million for our client Cadence Design Systems, Inc. in a suit for misappropriation of its trade secrets against Avant! and its founders. We referred the case to the Santa Clara County District Attorney which secured criminal convictions of the company and four executives.
Plaintiff v. Law Firm: We represented an Am Law 100 firm and one of its former partners in suits over the alleged mishandling of a patent application relating to electronic billboard technology. We won the complete dismissal of a state court action which was upheld by the California Court of Appeal. The plaintiff then filed a certiorari petition, however the U.S. Supreme Court denied it. We also secured the dismissal of four federal court claims, and won summary judgment on the remaining federal claim.
Jordache v. Brobeck, Phleger & Harrison: In a landmark decision that changed the rules for legal malpractice, we defended former law firm Brobeck, Phleger & Harrison LLP against legal malpractice allegations. We secured dismissal on summary judgment, which the California Supreme Court affirmed.
In re NCAA Name & Likeness Litigation: We represent Electronic Arts Inc. (EA) in a groundbreaking case that will determine how First Amendment protections apply to videogames. This right of publicity case was brought by a putative national class of current and former student athletes in the Northern District of California against EA, the National Collegiate Athletic Association and the Collegiate Licensing Company. Plaintiffs claim EA improperly used the athletes’ likenesses and biographical information in its NCAA Football and NCAA Basketball video games. The case is currently on appeal at the U.S. Circuit Court of Appeals for the Ninth Circuit. At issue is what legal test the circuit will adopt when balancing the right of publicity against rights of free expression.