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...
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
9th Circuit affirms summary judgment finding in favor of debt collector in lawsuit over retail card debt collection
On August 28, the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of a district court to throw out a pair of consolidated punitive class action lawsuits brought against a nationwide debt collector company that alleged the company unlawfully attempted to collect debts incurred on...
InfoBytesCalifornia appeals court reverses dismissal of Rosenthal Act class action
On August 30, a California Appeals Court (Appeals Court) reversed a lower court’s ruling that a mere alleged debt, whether or not actually due or owing – as opposed to a debt that is, in fact, actually due or owing – is insufficient to state a claim under the Rosenthal Fair Debt Collection...
InfoBytesD.C. Circuit overturns SEC rejection of an investment company’s Bitcoin ETF
On August 29, the D.C. Circuit overturned the SEC’s denial of a company’s application to convert its bitcoin trust into an exchange-traded fund (ETF). In October 2021, the company applied to convert its bitcoin trust to an ETF pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (...
InfoBytesSEC files brief in its Supreme Court appeal to reverse 5th Circuit ruling against use of adjudication powers and ALJs
On August 28, the SEC filed a brief in its appeal to the U.S. Supreme Court to reverse the decision of the U.S. Court of Appeals for the Fifth Circuit’s 2022 ruling that the commission’s in-house adjudication is unconstitutional. As previously covered by InfoBytes , the 5th Circuit held that the...
InfoBytes7th Circuit affirms dismissal of proposed Driver’s Privacy Protection Act class action
On August 22, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of a proposed class action alleging that defendant insurance companies leaked the plaintiffs’ drivers license numbers, holding that the plaintiffs lacked standing to sue the insurance companies. In a split...
InfoBytes2nd Circuit affirms leveraged loans are not securities
On August 24, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s order dismissing plaintiff’s claim that a national bank’s nearly $1.8 billion syndicated loan for a drug testing company were securities. The drug testing company filed for bankruptcy subsequent to a $256...
InfoBytes2nd Circuit affirms dismissal of FCA claims following government motion to dismiss
On August 21, the U.S. Court of Appeals for the Second Circuit upheld the dismissal of a whistleblower False Claims Act (FCA) case, holding that FCA qui tam relator complaints may be dismissed upon the government’s motion without a hearing, provided the district court consider the parties’...
InfoBytesUSDA urges Supreme Court to overturn FCRA 3rd Circuit ruling
On August 15, the USDA filed a brief urging the U.S. Supreme Court to overturn a U.S. Court of Appeals for the Third Circuit decision to reverse its FCRA lawsuit brought by a plaintiff who alleged that the consumer credit reporting agency reported two loans as past due even though he claimed both...
InfoBytes7th Circuit affirms dismissal of FDCPA case
On August 11, the U.S. Court of Appeals for the Seventh Circuit affirmed a lower court’s decision to grant defendants’ motion to dismiss, ruling that the plaintiff lacked standing. Plaintiff defaulted on a credit card debt that was purchased by one of the defendants and hired another defendant to...
InfoBytes9th Circuit affirms TCPA dismissal
On August 8, the Ninth Circuit affirmed a district court’s dismissal of a cause of action under the TCPA, wherein the plaintiff alleged that the defendant sent her three mass marketing text messages that utilized “prerecorded voice[s]” even though there was no audible component. Under the TCPA, it...
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
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Recent Blog Posts
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September 8, 2023
9th Circuit affirms summary judgment finding in favor of debt collector in lawsuit over retail card debt collection
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September 8, 2023
California appeals court reverses dismissal of Rosenthal Act class action
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September 1, 2023
D.C. Circuit overturns SEC rejection of an investment company’s Bitcoin ETF
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September 1, 2023
SEC files brief in its Supreme Court appeal to reverse 5th Circuit ruling against use of adjudication powers and ALJs
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August 25, 2023
7th Circuit affirms dismissal of proposed Driver’s Privacy Protection Act class action