Matters

Appellate Matters

A sampling of the appellate matters that Fox attorneys have handled includes:

Federal Courts of Appeals

  • Served as lead counsel in the appellate phase of the landmark case of Chiuminatta Concrete Concepts, Inc. v. Cardinal Industries, Inc., 145 F.3d 1303 (Fed. Cir. 1998), successfully reversing the trial court's decision convincing the Federal Circuit to find non-infringement of the principal patent in suit.
  • Successfully engaged as appellate counsel in the U.S. Court of Appeals on behalf of a building and construction company in an action in which judgments had been entered against the company and in favor of a union and various related benefit funds in the amount of $2.3 million. The matter settled for $50,000.
  • Argued before the Tenth Circuit Court of Appeals on behalf of a public company named in one of the relatively few Sarbanes-Oxley “whistleblower” cases to progress beyond agency proceedings to federal court review.
  • Successfully represented the sanctioning body for dirt track racing in the United States and Canada in a bet-the-company case in a major antitrust matter before the Third Circuit, which affirmed the district court’s entry of summary judgment in favor of the client on all claims.
  • Successfully persuaded the Fifth Circuit to reverse a trial court’s decision granting summary judgment in favor of a company that failed to withhold earnings of a student delinquent on a loan. The court’s analysis established a principle that greatly benefited the client, a nonprofit corporation that provides and supports students with financial and other services connected to their postsecondary education
  • Prevailed on behalf of a religious institution before the Third Circuit, which in a precedential opinion, upheld the lower court's dismissal of the plaintiff's claims against the client and held that the First Amendment protects a church's right to determine who is a member of its organization and that such decisions may not be challenged in, or disturbed by, the courts.
  • Attained more than $2 million verdict in a patent infringement suit on behalf of Accentra after a jury trial in the U.S. District Court for Central California against Staples, Inc., Accentra, Inc. v. Staples, Inc., No. 07-CV-05862 (C.D. Cal. 2007), which was then confirmed by the Court of Appeals for the Federal Circuit, Accentra, Inc. v. Staples, Inc. (Fed. Cir. 2012).
  • Successfully represented an insurance company in an appeal before the Ohio Court of Appeals for the Ninth Judicial District of a former senior executive’s claims for intentional infliction of emotional distress, breach of implied contract, promissory estoppel and unlawful termination based on age discrimination. The appeals court affirmed the trial court’s grant of summary judgment in favor of Fox’s client, noting the appellant’s affidavit in opposition to summary judgment failed to point to any genuine issues of material fact.
  • Successfully represented a major consumer and commercial financial services company in an appeal before the Eleventh Circuit in a claim involving fraudulent and negligent misrepresentation and negligent supervision. The court dismissed with prejudice all claims against the client.
  • Served as lead counsel in trial court and appeal on behalf of Wells Fargo Bank, N.A. in Horace–Manasse v. Wells Fargo Bank, N.A., 2013 WL 2450840 (11th Cir. 2013), a case involving a putative class of investors who were pursuing RICO claims in excess of $200 million against Wells Fargo in connection with an alleged Ponzi scheme operated by former Wells Fargo customers. The trial court dismissed the entire action with prejudice for failure to state a cause of action, which was affirmed by the Eleventh Circuit Court of Appeal.
  • Served as lead counsel in trial court and appeal on behalf of Wells Fargo Bank, N.A. in Capital Holdings, USA, Inc., et al. v. Wells Fargo Bank, N.A., et al. 2013 WL 1729801 (11th Cir. 2013), where the plaintiff attempted to pursue claims for fraudulent misrepresentation, negligent misrepresentation, aiding and abetting fraud and negligent supervision in connection with an alleged fraudulent loan scheme where the plaintiff expected a $30 million profit. After permitting multiple amendments, the trial court dismissed all claims against Wells Fargo with prejudice for failure to state a cause of action. The Eleventh Circuit affirmed the dismissal with prejudice of all claims against Wells Fargo.
  • Serving as lead counsel in trial court and appeal on behalf of Wells Fargo Bank, N.A. in Perlman v. Wells Fargo Bank, N.A., 2012 WL 3289826 (S.D. Fla. 2012), where a receiver appointed by the SEC is pursuing claims against Wells Fargo in connection with an alleged $68 million Ponzi scheme operated by the Receivership Entities. The trial court initially granted Wells Fargo’s motion to dismiss, in part, but allowed the receiver to proceed on his aiding and abetting and fraudulent transfer claims. Wells Fargo filed a motion for reconsideration as to the remaining counts due to an intervening decision in the Eleventh Circuit Court of Appeals. The trial court granted the motion for reconsideration and dismissed the entire action with prejudice. This matter is currently on appeal in the Eleventh Circuit Court of Appeals and is fully briefed.
  • Serving as lead counsel in trial court and co-counsel on appeal on behalf of Wells Fargo Bank, N.A. in Breslow v. Wells Fargo Bank, N.A., relative to the Telephone Consumer Protection Act (TCPA). The trial court granted partial summary judgment against Wells Fargo, holding that an unintended recipient of automated debt-collection calls is entitled to recovery under the TCPA. Both the trial court and the Eleventh Circuit Court of Appeals granted Wells Fargo permission to pursue an interlocutory appeal. The ruling on this case by the Eleventh Circuit Court of Appeals will have nationwide implications.
  • Successfully defended a summary judgment in a case before the Ninth Circuit involving a high-tech company that failed. The plaintiff attacked the officers and directors by attempting to pierce the corporate veil.

State Appellate Court

  • Successfully handled the New Jersey landmark palimony case of Maeker v. Ross, N.J. Super. (App Div. 2013), which precluded palimony cases from being brought unless the agreement was in writing, even if the oral promise or relationship predated the palimony amendment to the statute of frauds.
  • Successfully represented an insurance company in a significant class action before the Ohio Court of Appeals, where the court affirmed the trial court’s grant of summary judgment in favor of the client. Plaintiff’s counsel in this case had previously obtained nearly $70 million from three other insurance companies that settled identical class action lawsuits.
  • Successfully represented a prominent New Jersey real estate developer and his family in a prolonged and multimillion-dollar family business dispute for which the trial court granted summary judgment. The Appellate Division of the Superior Court of New Jersey affirmed the trial court’s decision.
  • Represented an asphalt manufacturer in a contract interpretation case before the Appellate Division of the New Jersey Superior Court. In an unpublished opinion, the Appellate Division preserved the client's ability to take deliveries at its asphalt manufacturing plant. This win allowed the client to stage railcars on a section of shared rail line that crossed a neighboring business’s property, effectively preserving the client’s ability to do business.
  • Prevailed in the New York Supreme Court on behalf of The Blackstone Group on a $4.5 million contract claim regarding $3.7 million in fees (plus interest) due from Taro Pharmaceutical Industries related to the sale of Taro to Sun Pharmaceutical Industries that was arranged by Blackstone. The court enforced a tail fee provision in Blackstone's engagement letter to sustain its claim for success fees due upon the sale.
  • Prevailed for Pulse Technologies before the Pennsylvania Supreme Court, which overturned a Superior Court decision and held that a restrictive covenant is enforceable even if it was not mentioned in an earlier offer letter.
  • Represented a New Jersey community college in an appeal to the Appellate Division of the Superior Court of New Jersey in a case involving the denial by the Division of Pension and Benefits to allow full-time employees, who had been prior part-time employees, to purchase and receive credits from the state’s Public Employees Retirement System (PERS) for their part-time service and have those credits transferred into the Alternative Benefits Program (ABP). The Appellate Division reversed the denial, permitting similarly situated employees to purchase the pension credits for previous service and have those credits transferred to the ABP.
  • Successfully argued an appeal before the Supreme Court of New Jersey regarding elective angioplasty regulations. The Supreme Court reversed the Appellate Division and required new or amended regulations.
  • Prevailed in the precedential case of Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010), which established new rules and procedures before a judge can impose conditions upon filing motions in a family part case.
  • Drafted a successful appellate brief on behalf of a global cruise line in an appeal commenced by a propulsion system manufacturer before the Florida Third District Court of Appeals, which addressed complex personal jurisdiction and arbitration issues.
  • Obtained the reversal of a decision of the Appellate Division of the Superior Court of New Jersey regarding certain regulations issued by the New Jersey Department of Health and Senior Services, in an appeal before the Supreme Court of New Jersey, on behalf of a New Jersey hospital.
  • Represented a New Jersey medical provider in a case filed under the state’s Conscientious Employee Protection Act (CEPA) and that asserted wrongful termination and breach of covenant of good faith and fair dealing. The trial court dismissed the claims and the Appellate Division of the Superior Court of New Jersey upheld the dismissal.
  • Prevailed in the case of Barr v. Barr, 418 N.J. Super. 18 (App. Div. 2011), a case concerning the equitable distribution of military pension, part of which accumulated through post-divorce efforts.
  • Successfully defended an appeal of the grant of summary judgment before the Appellate Division of the Superior Court of New Jersey in a reported decision on behalf of a surgical center and other parties against three physician/former members of the ambulatory surgery center, whose interests were redeemed. The court determined as a matter of first impression that the Uniform Securities Act did not allow "benefit of the bargain” damages and the plaintiffs were not permitted to recover anything beyond their original investment returned to them.
  • Served as lead counsel in trial court and appeal on behalf of Wells Fargo Bank, N.A. in Primitiva Becerra v. Wells Fargo Bank, N.A., relative to a real estate closing check deposited into a Wells Fargo account allegedly bearing a missing endorsement. At the time Fox attorneys were engaged, a default final judgment had been entered against Wells Fargo. After a contested evidentiary hearing, we successfully obtained an order vacating the default final judgment. The trial court granted Wells Fargo’s motion for summary judgment on the grounds that the plaintiff had not received delivery of the check and therefore never had any rights in the check. The summary judgment in favor of Wells Fargo was affirmed per curium by the Florida Fourth District Court of Appeal.
  • Represented the defendant in Sullivan v. Westfield Ins., 2013 WL 221436, 2013-Ohio-146 (Ohio Ct. App. 11th Dist. 2013), where the court affirmed the trial court’s grant of summary judgment on a putative multimillion-dollar consumer class action alleging fraud and breach of contract in insurance policies.
  • Obtained a reveral of a default judgment entered as a result of the conduct of prior counsel in Maciejewicz v. Energie, Inc., 2007 WL 313315 (N.J. App. Div. 2007).
  • Successfully handled the appeal in Yacavino v. Visceglia, 2006 WL 2033895 (N.J. App. Div. 2006), where the court affirmed the trial court’s grant of summary judgment on multimillion dollar claims of gifts, contract to make gifts and contract to make a will.
  • Secured a victory for a retailer in the California Count of Appeals in a zip code privacy class action, Palmer v. Party City (Cal.App.)
  • Obtained a victory on behalf of an employer in upholding a class action waiver in an arbitration agreement in Iskanian v. CLS (Cal. App.). The California Supreme Court recently affirmed our client’s position on all but one claim.

Representation of Amici Curiae

  • Acted as counsel for an insurance regulatory body as amicus curiae in an appeal to Pennsylvania Supreme Court, resulting in court's adoption of client's position in precedent-setting decision regarding priority of subrogation claims in insurance insolvencies
  • Submitted an amicus curiae brief on behalf of the Health Care Association of New Jersey, related to the case of Canter v. Lakewood of Voorhees, which opined that corporate veil-piercing principles may also apply to New Jersey limited partnerships.