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2. Are You Appealing? How to Make Your Case More Attractive to an Appellate CourtPresented by:David T. Case, Partner, K&L Gates LLPStavroula E. Lambrakopoulos, Partner, K&L Gates LLPJC Miller, former Executive Director of Litigation & Employment, XO CommunicationsJune 8, 2017Association of Corporate Counselwww.acc.com

3. The Road to Appeals • Program focus on civil appeals to U.S. circuit courts of appeal • Note: many state appellate courts have similar rules • Importance of in-house counsel managing expectations of senior management • Chances of Success Depend on Whether You Are Seeking to Affirm, Reverse or Remand • Only 1% of Cert Petitions to U.S. Supreme Court are granted annually • 7000 to 8000 petitions filed but only 70 to 80 decided annually

4. The Road to Appeals • U.S. Circuit Court Reversal Rate is Low (exclude Fed. Cir.) • 2016: 34,854 cases terminated on merits • 63% affirmed • 12.7% reversed, 1.5 remanded, 7.9% dismissed • 2015: 32,406 cases terminated on merits • 65% affirmed • 7.8% reversed, 1.6% remanded, 8.2% dismissed • Federal Circuit Statistics • 2016: 1,628 terminated on merits with 10% reversed • 2015: 1,517 terminated on merits with 11% reversed • Fourth Circuit Statistics • 2016: 4,524 terminated on merits with 6.2% reversed • 2015: 3,398 terminated on merits with 3.9% reversed SOURCE: United States Courts Statistical Tables for the Federal Judiciary, http://www.uscourts.gov/statistics-reports/analysis-reports/statistical-tables-federal-judiciary

5. When is Civil Case Ripe for Appeal to Circuit Courts of Appeal Under Federal Rules? • From a Final Decision of the District Court (28 U.S.C. §1291) (“Finality Rule”) • A judgment or decree has been entered that resolves all claims and counterclaims asserted by all parties • Dispositive Motions – (Fed. R. Civ. P. 9, 12) • Summary Judgment (Fed. R. Civ. P. 56) • Following trial and denial of motion for judgment as a matter of law (Fed. R. Civ. P. 50), or for a new trial (Fed. R. Civ. P. 59) • From an administrative proceeding following final government agency review (i.e. SEC administrative proceedings)

6. When Is Civil Case Ripe for Appeal to Circuit Courts of Appeal Under Federal Rules? • Interlocutory Appeals as of Right (28 U.S.C. §1292(a)) • Grant or denial of Injunctive Relief • Denial of motion to compel arbitration under Federal Arbitration Act • Discretionary Interlocutory Appeals (28 U.S.C. §1292(b)) • Certification of controlling question of law and substantial ground for difference of opinion

7. When Is Civil Case Ripe for Appeal to Circuit Courts of Appeal Under Federal Rules? • Remand of class action to state court (28 U.S.C. §1453(c)) • Fed. R. Civ. P. 23(f) appeal of order denying or granting class action certification • Fed. R. Civ. P. 54(b) certification of final judgment as to fewer than all claims for relief if there is no “just reason” for delay of appeal • Fed. R. Civ. P. 20 severance of claims and entry of judgment • Writ of mandamus or prohibition

8. Pitfalls on the Road to Appeal

9. Top Pitfalls • Missing Deadline for Filing Notice of Appeal • Can be fatal to appeal • Limited circumstances to obtain leave to appeal beyond the deadline • Fed. R. App. P. 4(a)(5) (excusable neglect or good cause) • Fed. R. App. P. 4(a)(6) (judgment not received)

10. Top Pitfalls • Failure to Preserve Appellate Grounds Below • “Waived” is one of the saddest words in an opinion • Did the trial court judge have an opportunity to evaluate and rule? • Were the relevant facts developed in trial court? • Was their admission as evidence sought and denied? • No ability to further develop factual record on appeal

11. Top Pitfalls • Failure to Preserve Appellate Grounds at Trial Court (cont’d) • Failure to object or get ruling on objection on the record • Failure to object to jury instructions and/or propose your own instructions • Failure to file motions inlimineand obtain rulings by trial court • Failure to object to verdict form or during closing statements

12. Top Pitfalls • Failure to raise grounds before trial judge • Fed. R. Civ. P. 50(b) motion for judgment at close of plaintiff’s case and at close of evidence • Post-trial motion for judgment as a matter of law or for new trial • Kitchen sink approach to appellate issues • Making all arguments and hoping something sticks

13. Top Pitfalls • Failure to properly cite record or legal authority • Loss of credibility with Court • Can be subject to sanction • Failure to properly transmit the record from the district court • May hamper citation and reference to material evidence and rulings of the trial court

14. Top Pitfalls • Failure to Cross-Appeal • Your opponent’s notice of appeal does not preserve your own appeal • Does a cross-appeal give you any advantage in the briefing?

15. Tips for Strong Appeals

16. Tips for Successful Appeals • Good Foundations for Successful Appeal are Built During Trial Level • Facts of your case are central to appeal • Developing factual record is key – appellate judges can find the law but whether they see your facts depends on whether you developed them as evidence and can reference them on appeal • If it’s not in the record, it didn’t happen • Confirm that your legal arguments are being preserved for appeal – appellate court may not consider legal arguments not presented to the district court judge

17. Tips for Successful Appeals • Good Foundations for Successful Appeal are Built During Trial Level • Have all rulings been transcribed by Court reporter, including any bench conferences and evidentiary hearings in midst of trial? • Provide information to your outside counsel regarding potential witnesses and sources for relevant documents • Identify personnel and former employees your counsel can interview to gain access to relevant facts and documents at start of litigation. • Stay nimble as facts evolve throughout discovery and trial • Start early internal discussions on authorizing appeal so deadline is not missed

18. Tips for Successful Appeals • Are you in a favorable circuit – is there good law? • If not, do you have a legal basis for a change of venue, removal to federal court from state court, consolidation of cases in one jurisdiction? • Assess precedent and persuasive authority within and outside jurisdiction • Are your judges known for particular views? What prior experience has your company had with them? Solicit views from your in-house colleagues and management and share with your counsel.

19. Tips for Successful Appeals • Your counsel’s litigation team should include or have access to lawyers with appellate experience • Try to attend key parts of trial in person or designate an in-house colleague who can be there • If unable to attend, get evening reports from your counsel and consider skimming through daily advance trial transcript • Participate in your counsel’s witness preparation sessions if witness is a current employee or officer and facilitate testimony logistics for current and former officers and employees

20. Tips for Successful Appeals • Stay vigilant with outside counsel who needs to ensure that: • Your objections at trial (evidentiary, jury instructions, improper closing) are properly preserved • Specific grounds for objection are stated • The Judge had an opportunity to rule on objections at trial on the record • Motions in limine are filed and ruled upon on the record • Tailored jury instructions are proposed and objections to improper instructions asserted • Motions for new trial or mistrial are filed if warranted

21. Tips for Successful Appeals • Be strategic in culling your arguments on appeal • Are there policy arguments that may appeal to the appellate court? • Are there constitutional challenges? • Is there a split in the circuits? • Do you have similar issues in other jurisdictions? • How will appeal affect your company’s other pending cases? • Be aware of evolution in the Circuits – Ex. Fourth Circuit, U.S. Supreme Court

22. Tips for Successful Appeals • Guide Counsel in Crafting Powerful Briefs • Briefs are the focal points of the appeal – they can make or break the appeal • Brevity counts – push counsel to stay within page limits and resist page limit extensions • Are multiple parties with common interests appealing? Divide and conquer! • Be mindful of format rules and word counts

23. Tips for Successful Appeals • A persuasive brief is credible and accurate in citing facts and legal authority • Deal with weaknesses head-on if relevant • Gimmicks do not work with appellate judges • Putting bad arguments in the footnotes may backfire • Consider whether certain arguments should be taken on and if so, whether they should be in opening brief or reply brief

24. Tips for Successful Appeals • The factual section of brief will be central to persuading the panel • The law may not vary but how the facts are applied to the law is central • Does the brief use the proper standard without wasting pages explaining it? • Are best authorities cited preferably from Supreme Court and that Circuit? • Does the brief sing? Can you read it in one sitting, or are you lost? Imagine how a judge will read it.

25. Tips for Successful Appeals • Is brief focused on key arguments • What are your most persuasive grounds for appeal? • Drop far-fetched arguments and spend few pages on weaker arguments • Resist scattershot approach • Is there a theme that ties all together? • If you are the appellant, raise all arguments in opening brief but hold some fire for any reply brief • Appellants use reply brief to focus opposition to arguments of opponent

26. Tips for Successful Appeals • Consider cross-appeal if you are the appellee to preserve your grounds for appeal • Demonstrate that error is not harmless (Fed. R. Civ. P. 61) • Do you have friends? Amicus briefs can help.

27. Tips for Successful Appeals • Quarterback the Oral Argument • Argument is not always granted • Listen to prior oral arguments before Circuit judges to get a flavor for your panel judges • You may not know your panel until day of argument • Do you have prior experience with panel judges to share with counsel? • Are other cases being heard with similar issues?

28. Tips for Successful Appeals • Participate in multiple moots for the argument • Be tough and thorough with your counsel • Anticipate questions judges may ask • Anticipate adversary’s arguments • Include counsel in moot who may not have involvement in the case to get fresh perspectives • Consider hypotheticals • Questions from judges during argument should not be ignored

29. Tips for Successful Appeals • Be alert for concessions by your opponent • Authorize your counsel to concede if necessary to be credible and correct material misstatements • Counsel should press key points even with hostile panel • Counsel should be strategic about rebuttal and reserve enough time

30. Tips for Successful Appeals • Be proactive from beginning; keep management in loop • Have counsel prepare a budget • Manage settlement discussions and participate in-person in any mediation • Help counsel humanize the company • Review counsel’s briefs – look for stilted language, incredible arguments, lack of focus, credible precedent and authority • Help counsel put in context policies and historical facts • Review prior rulings and record

31. Faculty Biographies David T. Case is partner in the Washington, DC office of K&L Gates who concentrates on financial services litigation, general commercial litigation, insurance coverage litigation, toxic tort litigation, and government contracts litigation. He has represented major clients in litigation in California, Minnesota, New Jersey, Arizona, Connecticut, Maryland, Virginia, the District of Columbia and Washington state, as well as before the United States Court of Federal Claims, the Armed Services Board of Contract Appeals and the General Accounting Office. Mr. Case’s trial experience includes litigation of technical financial, engineering, environmental, and scientific issues. Prior to practicing at K&L Gates, Mr. Case served as a Judge Advocate in the United States Marine Corps, and as a Law Clerk to the Honorable R. James Harvey of the United States District Court for the Eastern District of Michigan.  Mr. Case is currently the Administrative Partner of the Washington, D.C. office of K&L Gates. Stavroula E. Lambrakopoulos is a partner in the Washington, DC office of K&L Gates who concentrates her practice in securities enforcement matters, securities and financial services litigation, internal investigations and broker-dealer regulation. She regularly represents corporate and individual clients in enforcement proceedings before the SEC, the United States Department of Justice, FINRA, and state securities regulators. She represents financial institutions, corporations, and their officers in complex financial services cases and securities class action litigation. She leads cross-border internal investigations on behalf of multinational public and private companies on various issues including whistleblower complaints, accounting and financial issues and anti-corruption matters. Ms. Lambrakopoulos started her legal career as a law clerk in the Office of General Counsel at Ernst & Young focusing on appellate litigation. . 31

32. For more information contact us: David T. Case, Esq., Partner K&L Gates LLP 1601 K Street, NW Washington, DC 20006-1600 +1.202.778.9084 David.case@klgates.com www.klgates.com Stavroula E. Lambrakopoulos, Esq., Partner K&L Gates LLP 1601 K Street, NW Washington, DC 20006-1600 Stavroula.lambrakopoulos@klgates.com O: 202.778.9248 www.klgates.com 32

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