Appellate
Practice Overview
Appellate law demands highly specific and finely honed written and oral advocacy, which complements, but is often distinct from, litigation and trial skills. Buckley’s Appellate practice brings all of these skills to bear. Whether safeguarding a hard-fought trial court victory or reversing an unfavorable ruling, our attorneys consistently deliver at the highest level throughout the appellate process.
We represent individuals and corporate entities in a broad range of appellate matters, with an emphasis on appeals involving the financial services industry and white collar crime. Our Appellate team has argued — and won — cases in state appellate and federal circuit appellate courts throughout the country.
Our firm knows firsthand from decades of experience that the need for appellate counsel proficiency begins when litigation commences. No win is secure and no defeat is absolute until potential appeals are resolved. Our team is involved in strategy development from the early stages of litigation through the appeals process. We are adept at identifying the issues that affect an appeal, and resolve difficult issues of record development and preservation to position the case for appeal. We are known for assertive and precise briefs. We also understand that a favorable settlement can be the best outcome, and have helped our clients explore these opportunities when they arise, with candid advice based on experience in all aspects of the litigation process.
Buckley also is retained for amicus briefs in matters with significant impact on the financial services industry and criminal law issues. Amicus briefs can affect legal policy and the landscape of any given market. The financial services industry, in particular, recognizes the critical nature of retaining a law firm that can advocate through amicus briefs and serve as appellate counsel when necessary.
Noteworthy matters include:
- Defended former Virginia Governor Robert McDonnell, whose public corruption convictions were unanimously overturned by the Supreme Court, which ruled that the government overreached in defining when a public servant’s actions are “official acts”
- Represented on appeal Bridget Kelly, the former deputy chief of staff to New Jersey Governor Chris Christie, whose trial conviction was recently reversed in a unanimous decision by the Supreme Court
- Represented JP Morgan Chase Bank in an action by plaintiffs seeking to enjoin foreclosures based on assertions of sovereign immunity and indigenous rights; obtained a dismissal of all claims before the District Court, and successfully defended the action before the United States Court of Appeals for the D.C. Circuit, which included cross motions to dismiss the plaintiffs’ interlocutory appeal and a petition for a writ of mandamus
- Achieved an appellate victory in defending the estate of Michael Jackson and MJJ Productions, Inc., when the United States Court of Appeals for the D.C. Circuit unanimously affirmed a lower court ruling that what the plaintiff referred to as “newly discovered evidence” was not admissible
- Represented a top mortgage loan servicer in a False Claims Act qui tam investigation into servicing and loss mitigation activities, in which the government declined to intervene in the case; obtained a dismissal of the case on motion, which the Sixth Circuit upheld on appeal
- Filed an amicus brief on behalf of the Mortgage Bankers Association, the National Association of Home Builders, and the National Association of REALTORS® in the Supreme Court case addressing the appropriate remedy should the Court find the Consumer Financial Protection Bureau’s structure unconstitutional. Seila Law LLC v. Consumer Fin. Prot. Bureau
- Filed an amicus brief in PHH v. CFPB, the first administrative decision by the Consumer Financial Protection Bureau Director to come up for appeal before the District of Columbia Circuit; Buckley attorneys argued that the CFPB Director’s decision to ignore the longstanding interpretation of Section 8 of the Real Estate Settlement Procedures Act (RESPA) would eliminate an important form of risk retention, make the home mortgage closing process more difficult and expensive for consumers, and particularly harm the country’s least affluent mortgage borrowers
Articles
"Supreme Court decision upholds but limits SEC’s disgorgement authority" by Olivia A. Rauh
A recent Supreme Court decision allows the Securities and Exchange Commission to continue pursuing disgorgement in its enforcement actions, but with significant limitations that will curb disgorgement’s scope and could complicate the SEC’s future efforts to seek it.
Whether the SEC has...
Buckley Commentary & Analysis"When the court orders a Brady violation"
What happens when prosecutors fail to make constitutionally required disclosures of evidence because the court ordered them not to? The U.S. Court of Appeals for the Sixth Circuit weighed in on this issue recently,...
Buckley Commentary & Analysis"Ruling on anti-hacking law may guide fair lending tests" by Jeffrey P. Naimon (Law360)
Regulators, consumer groups, academics and private litigants are grappling with the fair lending implications of the credit models powering the explosive growth in online lending by banks and financial technology firms. The U.S. District Court for the District of Columbia in late March concluded...
Articles"Supreme Court will likely decide whether courts can order disgorgement in SEC enforcement proceedings" by Olivia A. Rauh
The Supreme Court will hear arguments on March 3 in a case that will likely determine whether the SEC has statutory authority to seek disgorgement in enforcement actions, and whether the courts have authority to order it.
The SEC’s authority to seek disgorgement was virtually...
Buckley Commentary & Analysis"High Court seems skeptical of 5th Circ. sentencing practice" by Elizabeth R. Bailey and Jill Winter (Law360)
The U.S. Supreme Court heard oral arguments on Tuesday in a case that may clarify how specific a defendant’s lawyer must be when objecting to a criminal sentence, and when she must make that objection, in order to receive a more favorable standard of review on appeal. The question before the...
Articles"Congress may restore SEC’s disgorgement power" by Mehul Madia
Congress is considering legislation that would clarify and significantly expand the Securities and Exchange Commission’s disgorgement powers, two years after the Supreme Court curtailed them in ruling that they were penalties subject to a five-year statute of limitations. The decision in...
Buckley Commentary & Analysis"Night of the living SEC injunction" by Lauren R. Randell (Law360)
Just in time for Halloween, a decision by the U.S. Court of Appeals for the Third Circuit raises the specter that conduct once considered time-barred can return from the dead to haunt defendants in the securities industry. The case, U.S. Securities and Exchange Commission v. Gentile, further...
Articles"Apropos of nothing: The possible demise of the Fifth Circuit post-sentencing objection" by Elizabeth R. Bailey
Should the courts penalize criminal defendants on appeal when their attorneys fail to utter magical (but duplicative) words at the end of sentencing? The U.S. Court of Appeals for the Fifth Circuit continues to require a formal post-sentencing objection to the length of a sentence to preserve...
Buckley Commentary & Analysis"The great data breach standing circuit split" by Amanda R. Lawrence (Law360)
Data breaches are back in the news in a big way. Over the past several weeks alone, prominent hotel chains, online platforms and retailers announced significant data breaches. Unsurprisingly, in the aftermath of these disclosures, consumers filed class actions alleging that the data breaches...
Articles"The devil is in the details: LabMD imposes limitations on the FTC’s enforcement authority" by Elizabeth E. McGinn and Sasha Leonhardt, (Cybersecurity Law Report)
In the latest data security case with significant implications for all enforcement actions, the United States Court of Appeals for the Eleventh Circuit struck down a cease-and-desist order as impermissibly vague. By ruling against the FTC in its long-running and contentious dispute with LabMD, the...
ArticlesAndrew W. Schilling and Megan E. Whitehill Authored a Law360 Article, "Revisiting Bishop In Light Of Escobar"
Last year, the Second Circuit Court of Appeals in New York handed the banking industry some much-needed ammunition to fight back against False Claims Act suits premised on broad certifications of compliance. Specifically, in Bishop v. Wells Fargo & Co ., the court affirmed the dismissal of a...
ArticlesThe Fair Housing Act, Disparate Impact Claims, and Magner v. Gallagher
The authors discuss the text of the Fair Housing Act, its legislative history, and the past federal appellate court decisions holding that the FHA permits disparate impact claims. They argue that recent Supreme Court decisions cast doubht on the past federal appellate court decisions, and show that...
Articles
News & Blogs
Online lender asks Supreme Court to review ALJ ruling
A Delaware-based online payday lender and its founder and CEO (collectively, “petitioners”) recently submitted a petition for a writ of certiorari challenging the U.S. Court of Appeals for the Tenth Circuit’s affirmation of a CFPB administrative ruling related to alleged violations of the Consumer...
InfoBytes4th Circuit remands privacy suit to state court
On February 21, the U.S. Court of Appeals for the Fourth Circuit held that a proposed class action over website login procedures belongs in state court. Plaintiff alleged that after a nonparty credit reporting agency experienced a data breach, it used the defendant subsidiary’s website to inform...
InfoBytes9th Circuit concludes district attorneys can sue national banks in state court
On February 27, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s decision to abstain from enjoining a state action brought by a California county district attorney (DA) against a national bank, concluding that the enforcement action was not an exercise of “visitorial...
InfoBytes8th Circuit reverses debt collection action for lack of standing
On February 24, the U.S. Court of Appeals for the Eighth Circuit vacated and remanded the dismissal of a class action lawsuit concerning a medical collection letter that listed amounts due but did not distinguish between the principal and the interest that the debt collectors were attempting to...
InfoBytesSupreme Court agrees to review constitutionality of CFPB’s funding, but not on an expedited basis
The Supreme Court granted the CFPB's request to review the U.S. Court of Appeals for the Fifth Circuit’s decision in Community Financial Services Association of America v. Consumer Financial Protection Bureau but so far has not expedited consideration of the case. Without quick action to expediate...
InfoBytesIllinois Supreme Court says BIPA claims accrue with every transmission
On February 17, the Illinois Supreme Court issued a split decision holding that under the state’s Biometric Information Privacy Act (BIPA), claims accrue “with every scan or transmission of biometric identifiers or biometric information without prior informed consent.” The plaintiff filed a...
InfoBytes2nd Circuit says collection letter sent on law firm letterhead did not violate FDCPA
On February 13, the U.S. Court of Appeals for the Second Circuit affirmed summary judgment in favor of a defendant law firm accused of violating the FDCPA when it sent the plaintiff a collection letter on law firm letterhead. The plaintiff claimed both that the letter overshadowed her validation...
InfoBytesSupreme Court “relist” of CFPB petition for certiorari threatens prolonged legal limbo
The Supreme Court recently had the opportunity to grant the CFPB’s pending petition for certiorari seeking review of the U.S. Court of Appeals for the Fifth Circuit’s holding in Community Financial Services Association of America v. Consumer Financial Protection Bureau . The 5th Circuit found that...
InfoBytesCFPB urges Supreme Court review of 5th Circuit decision
The CFPB recently filed a reply brief in its petition for a writ of certiorari asking the U.S. Supreme Court to review whether the U.S. Court of Appeals for the Fifth Circuit erred in holding that the Bureau’s funding structure violates the Appropriations Clause of the Constitution, and to consider...
InfoBytes11th Circuit advances TILA suit weighing agency theory of liability
On February 6, the U.S. Court of Appeals for the Eleventh Circuit reversed a district court’s finding of summary judgment in favor of a financing company concerning alleged violations of TILA. The plaintiff agreed to purchase air conditioning repairs by taking out a loan with a company that...
InfoBytes
Press Releases & Announcements
Buckley files amicus brief in CFPB constitutionality case
Buckley LLP on Dec. 16 filed an amicus brief on behalf of the Mortgage Bankers Association, the National Association of Home Builders, and the National Association of...
AnnouncementsBenchmark recognizes Buckley Sandler litigation team; David Krakoff inducted into American College of Trial Lawyers
Benchmark Litigation has recognized Buckley Sandler as one of the nation’s top litigation law firms, awarding it a National Tier 1 ranking for its White Collar practice and deeming its District of Columbia litigation team “Highly Recommended” — Benchmark’s highest...
Announcements
Our Appellate Team
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Recent Blog Posts
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March 10, 2023
Online lender asks Supreme Court to review ALJ ruling
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March 9, 2023
4th Circuit remands privacy suit to state court
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March 3, 2023
9th Circuit concludes district attorneys can sue national banks in state court
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March 3, 2023
8th Circuit reverses debt collection action for lack of standing
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March 1, 2023
Supreme Court agrees to review constitutionality of CFPB’s funding, but not on an expedited basis