The Appellate Advocacy Award, awarded annually, recognizes excellence in appellate advocacy in America. It is given to attorneys who have been instrumental in securing a final appellate court decision with significant impact on the right to trial by jury, public health and safety, consumer rights, civil rights, environmental justice, access to justice in civil cases, or other issues relevant to the work of the Pound Institute.
2022 Award Winners Gupta, Conner, and Farrar; High Distinction to Kralowec
Deepak Gupta, Dennis Conner, and Kyle Farrar for Ford Motor Co. v. Montana Eighth Judicial District Court
Kimberly Kralowec for Frlekin v Apple Inc.
The Officers and Trustees of the Pound Civil Justice Institute have given the Institute’s 2022 Appellate Advocacy Award to the lawyers for the successful plaintiffs in a 2021 U.S. Supreme Court decision, and High Distinction recognition to the plaintiffs’ attorney in a 2020 California Supreme Court decision. The decisions represent outstanding results with far-reaching implications for injury victims and hourly-wage employees.
The decision arose from two products liability actions involving Ford automobiles. The driver of one car died in an incident in Montana, and a passenger in the other car was severely injured in a collision in Minnesota. The injuries occurred in the forum states, the victims were residents of the forum states, and Ford did substantial business in both states, yet in both cases Ford moved to dismiss for lack of personal jurisdiction, arguing that the company had done nothing in the forum states to cause the plaintiffs’ claims. Dennis Conner represented the plaintiffs who prevailed in the Montana lower courts and Supreme Court; Kyle Farrar successfully represented plaintiffs in the Minnesota trial court, Court of Appeals, and Supreme Court. Ford appealed both state court decisions to the U.S. Supreme Court, where the cases were consolidated.
Deepak Gupta briefed and argued the consolidated case in the Supreme Court, focusing on com-mon sense and the lack of any unfairness to Ford. Because of the COVID-19 pandemic, oral argument was held by telephone, without counsel being able to see the Justices. Gupta also organized a powerful amicus curiae campaign, recruiting the Main Street Alliance (a national network of small business coalitions), the National Association of Home Builders, and the attorneys general of 40 states and the District of Columbia (including some not usually allied with consumer interests). The result was a unanimous (8-0) decision authored by Justice Elena Kagan that concluded that, “[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its resi-dents, the State’s courts may entertain the resulting suit.” 141 S.Ct. at 1022.
The Institute’s recognizes with High Distinction victory in a precedent-setting employee-rights class action by Kimberly A. Kralowec. Apple, Inc., one of the most powerful technology companies in the world, long declined to pay its retail store employees for the time they spent waiting for, and undergoing, mandatory security checks of their personal possessions when they left work. The company contended that the employees were not performing work during that time, and could have avoided the security checks by leaving their personal possessions at home.
Ms. Kralowec represented Apple employees in a wage-and-hour class action in federal court, challenging the company’s policy. The district court granted summary judgment to Apple. On appeal, the Ninth Circuit certified questions to the state supreme court. In Frlekin v Apple Inc., 457 P.3d 526 (Cal. 2020), Ms. Kralowec secured a precedent-setting ruling on the scope of California’s definition of compensable “hours worked.” The California Supreme Court held that (1) the time employees spent on the employer’s premises waiting for, and undergoing, mandatory exit searches was employer-controlled activity, and therefore it was compensable as “hours worked” within the meaning of the “control” clause of the state wage order; and (2) the decision could not be limited to prospective application. On remand, the federal district court reversed its earlier decision for Apple and entered summary judgment on liability for the employees.
These lawyers’ dedication to the civil justice system, and their persuasive advocacy in the Ford and Frlekin cases, have had a significant impact on access to justice in future civil cases in the United States.
2021 Award Winners Adam R. Pulver; Richard Riley
Adam R. Pulver for McAdory v. M.N.S. & Assocs., Ltd. Liab. Co.
Richard Riley for Williams v. Aguirre
The Officers and Trustees of the Pound Civil Justice Institute have given the Institute’s 2021 Appellate Advocacy Award jointly to the lawyers for the successful plaintiffs in 2020 consumer and civil rights cases. The decisions represent outstanding results with far-reaching implications for consumers and those who are falsely accused of crimes.
Victory on a crucial consumer protection issue by Adam R. Pulver of Public Citizen Litigation Group. The federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, protects consumers from abusive practices by debt collectors. In McAdory v. M.N.S. & Assocs., Ltd. Liab. Co., 952 F.3d 1089 (9th Cir. 2020), Jillian McAdory’s consumer debt was purchased by the defendant, DNF, which repeatedly contacted her through agents to secure repayment. She alleged that DNF and its agents committed numerous violations of FDCPA with respect to her debt, including harassing telephone calls and unauthorized withdrawal of money from her bank account when no payment was due. DNF moved to dismiss, arguing that it was merely a “passive” debt buyer employing third parties as debt collectors, and had no direct interactions with debtors. Thus, it said, the company did not have debt collecting as its principal purpose, and the Act did not apply to it. The district court granted the motion to dismiss.
The Ninth Circuit considered the question “whether a business that buys and profits from consumer debts, but outsources direct collection activities, qualifies as a ‘debt collector’” under the FDCPA. The court concluded that McAdory sufficiently alleged that DNF was a debt collector, regardless of whether it outsourced its direct-contact activities to a third party. District courts throughout the U.S. had reached conflicting conclusions on that point, and the Ninth Circuit’s answer is crucial to the U.S. consumer protection regime. The case was remanded to the district court for further proceedings.
Adam Pulver, of Public Citizen Litigation Group in Washington, DC, was lead appellate counsel, and argued the case before the Ninth Circuit. The plaintiff’s lead trial counsel was Kelly D. Jones, Portland, OR.
Victory in a complex civil rights/police violence case by Richard Riley of Marsh, Rickard & Bryan P.C., Birmingham, Alabama. Aubrey Williams and a friend were stopped by two police officers who were investigating a nearby bank robbery. Both were carrying concealed handguns for safety. Williams dropped to all fours and repeatedly told the officers he had a gun beneath him. Regardless, one officer shot Williams twice after he pushed him over and saw the gun The police charged him with attempted murder, claiming that he had pointed his gun at them. (Their squad car “dashcam” video showed that he did not.) Williams spent two months in the hospital recovering from his wounds, and served 16 months in pretrial jail detention before the prosecutor dismissed the charges against him for want of evidence.
Williams brought an action against the two police officers under § 1983 and state law, alleging that he was maliciously prosecuted on the charges of attempted murder. The officers moved for summary judgment, claiming qualified immunity and state-agent immunity. The district court denied the officers’ motion. On their appeal, the Eleventh Circuit, in Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020), held that fact issues precluded summary judgment on both the § 1983 malicious prosecution claim and the officers’ claim of state-agent immunity. Chief Judge William Pryor noted in his opinion that the dashcam video was consistent with the plaintiff’s account of the events, and “support[ed] an inference that someone is lying.” Importantly, the court held that the “any crime” rule (which would provide immunity from false-arrest claims if there were probable cause to arrest the suspect for some crime, even if it was not the crime the officer thought had occurred) does not apply to § 1983 malicious prosecution claims. That holding resolved a conflict in circuit precedent and clarified the issue for any future litigants. The lawsuit was later settled.
Aubrey Williams was represented on appeal by Richard Riley. The plaintiff’s trial counsel were David Marsh and Rip Andrews of the Marsh firm, and Alan Lasseter of the Lasseter Law Firm.
These lawyers’ dedication to the civil justice system, and their persuasive advocacy in the McAdory and Williams cases, have had a significant impact on access to justice in future civil cases in the United States.
2020 Award Winners Matthew Wessler; team of Bland, Gilbride, Nicholls, Noble, Bennett
Matthew Wessler for Intel Corp. Inv. Policy Comm. v. Sulyma
Paul Bland, Karla Gilbride, Leah M. Nicholls, Ellen Noble, and Jennifer Bennett for Home Depot USA v. Jackson
The Officers and Trustees of the Pound Civil Justice Institute have given the Institute’s 2020 Appellate Advocacy Award jointly to the lawyers for the successful plaintiffs in two recent U. S. Supreme Court cases. The decisions repre-sent outstanding results with far-reaching implications for consumers and retirees.
Victory for ERISA litigants secured by Matthew Wessler. In Intel Corp. Inv. Policy Comm. v. Sulyma 140 S. Ct. 768 (2020), a unanimous Supreme Court ruled that retirees complaining of a breach of fiduciary duty, leading to imprudent investments, were allowed additional time to file their actions (within six years of learning of the breach, instead of three years). This decision made it easier for workers and their families to seek redress from employers for taking excessive risks with their retirement savings, rejecting the view that the timing of such suits is triggered by mere receipt of dense financial disclosures. The Employee Retirement Income Security Act of 1974 (ERISA) requires plaintiffs with “actual knowledge” of an alleged fiduciary breach to file suit within three years of gaining that knowledge, but it allows plaintiffs to file within six years if they do not have such actual knowledge. In this case, the plaintiff (a physicist who had worked for Intel) testified that he was aware of disclosures about investments, but had not read them, and was unaware of the imprudent investments. The Court held that a plaintiff does not necessarily have “actual knowledge,” under ERISA, of the information contained in disclosures that he receives but does not read or cannot recall reading. The Court’s decision is essential to allowing workers whose employers have mismanaged their retire-ment investments to get into court. If companies could shorten the time limit workers have to bring lawsuits simply by “disclosing” investment decisions in lengthy fine-print documents, many workers whose retirement savings have been mismanaged would be prevented from bringing their cases to court. The Sulyma decision thus keeps the court-house doors open for workers and makes it easier to hold retirement fund managers accountable. Matthew Wessler, of Gupta Wessler, in Cambridge, Massachusetts, argued the case orally, and authored the brief with Jonathan E. Taylor.
Victory on crucial removal issue by the team of Bland, Gilbride, Nicholls, Noble, and Bennett. In Home Depot USA v. Jackson139 S.Ct. 1743 (2019), an unusual coalition of justices were persuaded that a third-party counterclaim defendant may not remove a case to federal court, either under the general federal removal provisions or under the Class Action Fairness Act’s removal provision, 28 U.S.C. § 1453. In an opinion written by Justice Clarence Thomas, joined by Justices Breyer, Kagan, Sotomayor, and Ginsburg, the court noted that, in the context of the removal provisions, the term “defendant” refers only to the party sued by the original plaintiff, and not to a party brought into the litigation later. The decision is significant in that it allows more consumers to sue in state courts, and avoid removal to federal court—a common tactic employed by defendants in such cases, often compelling consumers to satisfy numerous procedural requirements they might not face in state court. On its face, the opinion focuses only on class actions, but had the Court ruled differently, many state-based cases of all types, even personal injury cases involving in-state defendants, might have become removable to federal court. The plaintiff’s brief in the U.S. Supreme Court was authored by Public Justice attorneys Paul Bland, Karla Gilbride, Leah M. Nicholls, Ellen Noble, and Jennifer Bennett (now of Gupta Wessler). The case was argued orally by Paul Bland.
These lawyers’ dedication to the civil justice system, and their persuasive advocacy in the Jackson and Sulyma cases, have had a significant impact on access to justice in future civil cases in the United States.
2019 Award Winners Jennifer Bennett; team of Clancy, Harty, Goldstein, Myers, and Ruckdeschel
Jennifer Bennett for New Prime Inc. v. Oliveira
Denyse Clancy, William Harty, Thomas Goldstein, Richard Myers, and Jonathan Ruckdeschel for Air & Liquid Systems Corp. et al. v. DeVries et al.
The Officers and Trustees of the Pound Civil Justice Institute have given the Institute’s 2019 Appellate Advocacy Award jointly to the lawyers for the plaintiffs for their work on two crucial U.S. Supreme Court cases decided in 2019. The decisions represent outstanding results with far-reaching implications for two groups who have historically been treated unfairly: transportation workers who are frequently manipulated and cheated by employers; and maritime workers exposed to unsafe working conditions. The awards were presented on July 28, 2019, at the Pound Fellows reception, 6:00-7:30 pm in San Diego, CA.
Transportation workers’ victory by Jennifer Bennett. In New Prime, Inc. v. Oliveira, 139 S. Ct. 532 (2019), a truck driver, on behalf of himself and fellow workers, sued his employer for wage theft. The employer attempted to enforce an arbitration “agreement” the workers has signed as part of their employment contract, arguing that the Federal Arbitration Act compelled arbitration, one claim at a time. The plaintiffs demonstrated that the Federal Arbitration Act does not apply to the “contracts of employment” of transportation workers engaged in interstate commerce, even if they are classified as independent contractors. The Court’s unanimous decision clears the way for perhaps hundreds of thousands of transportation workers to take their cases to court if their employers break the law. The appeal was argued before the Supreme Court by Jennifer Bennett (Public Justice, Oakland, CA), who litigated the case with Andrew Schmidt (Andrew Schmidt Law, Portland ME) and Hillary Schwab (Fair Work Law, Boston, MA).
Maritime asbestos win by the team of Clancy, Harty, Goldstein, Myers, and Ruckdeschel. In Air & Liquid Systems Corp. et al. v. DeVries et al., 139 S.Ct. 986 (2019), the widows of two navy shipmen sued the manufacturer of engine parts installed in a ship built for the U.S. Navy. Their husbands worked on Navy ships during the time when asbestos insulation was routinely used on ships. They later developed cancer that the plaintiffs alleged was caused by exposure to asbestos that was applied to the ship parts after delivery. The manufacturers argued that they could not be held liable, as they supplied only “bare metal” parts that would not cause cancer. However, in Devries, the Supreme Court held that, under maritime law, product manufacturers have a duty to warn when they have reason to know that a product is likely to be dangerous when integrated and used as intended. The plaintiffs were represented by William Harty (Patten, Wornom, Hatten & Diamonstein, Newport News, VA), Richard Myers (Paul, Reich & Myers, Philadelphia, PA), Jonathan Ruckdeschel (Ruckdeschel Law Firm, Ellicott City, MD), Thomas Goldstein (Goldstein & Russell, Bethesda MD) and Denyse Clancy (Kazan, McClain, Satterley & Greenwood, Oakland, CA). Myers brought the case from the trial level through the Third Circuit and oversaw the appeal. Clancy, Harty and Ruckdeschel wrote the SCOTUS brief. Goldstein argued the case before the Supreme Court.
These lawyers’ dedication to the civil justice system, and their persuasive advocacy in the Oliveira and DeVries cases, have had a significant impact on the right of access to justice in future civil cases in the United States.
2018 Award Winners Brueckner and Siminou
Leslie Brueckner and Benjamin Siminou for T.H. v. Novartis Pharmaceuticals Corp.
The Officers and Trustees of the Pound Civil Justice Institute have bestowed the Institute’s 2018 Appellate Advocacy Award on Leslie Brueckner of Public Justice in Oakland, CA and Benjamin Siminou of Siminou Appeals in San Diego, CA. They were honored for their distinguished work resulting in the California Supreme Court’s landmark decision in T.H. v. Novartis Pharmaceuticals Corp., 407 P.3d 18 (Cal. 2017).
In T.H., a unanimous California Supreme Court held that, because brand-name prescription drug companies write the labels for all drugs, they may be sued for failing to warn of the dangers of mislabeled, generic versions of their drugs. A majority of the Court also held that even former brand-name manufacturers are subject to suit if their failure to update their labels to warn of their drug’s dangers foreseeably injure consumers of generic drugs. T.H. is the only standing decision of any appellate court granting consumers the right to seek compensation when they are injured by mislabeled generic drugs. More than 90 percent of all drugs sold in the U.S. are generic, and, under current federal law, generic drug manufacturers have complete immunity from suit because they do not write their products’ labels. Because there are no issues of federal law in T.H., it cannot be appealed to the U.S. Supreme Court.
Ben brought the case from the trial level through to the California Court of Appeals. Once at the California Supreme Court, Leslie and Ben jointly wrote the appellate briefs for the plaintiff, and both argued orally. Their efforts were supported by an amicus curiae brief of Consumer Attorneys of California and the American Association for Justice, authored by Charles Dell’Ario, of Napa, California, and Jeffrey R. White of AAJ.
Leslie is a Senior Attorney at Public Justice, a national public interest law firm, where she has worked for 25 years. She specializes in cutting-edge appellate litigation in the state and federal courts, such as class actions, constitutional law, federal preemption, consumer rights, personal jurisdiction, food safety, and combating court secrecy. She has handled numerous appeals in the federal and state courts, including the Supreme Courts of California, South Carolina, South Dakota, and West Virginia, and in the U.S. Supreme Court. Ben Siminou is the founder and principal of Siminou Appeals in San Diego, specializing in appeals of civil cases. Prior to establishing Siminou Appeals, Ben worked nearly a decade as a trial lawyer with the San Diego-based plaintiffs’ firm, Thorsnes Bartolotta McGuire LLP, where he handled virtually every aspect of civil litigation. Ben has handled numerous civil and criminal appeals in the California Supreme Court, the California Court of Appeal, and the Ninth Circuit.
Leslie and Ben’s dedication to the civil justice system, and their persuasive advocacy in T.H. v. Novartis, have had a significant impact on the right of access to justice in civil cases in the United States.
2017 Award Winner F. Paul Bland, Jr.
F. Paul Bland, Jr. for Chen v. Allstate Insurance Co.
The Officers and Trustees of the Pound Civil Justice Institute have given the Institute’s 2017 Appellate Advocacy Award to Paul Bland of Public Justice for his work on Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016). The award will be presented on July 23, 2017, at the Pound Fellows reception, 5:30-7:00 pm at the Sheraton Boston Hotel.
Bland conducted the oral argument in Chen, and authored the brief with co-counsel Karla Gilbride of Public Justice and Claire Prestel now with James & Hoffman, Washington, D.C. The attorneys persuaded the Ninth Circuit to reject the defendant’s attempt to avoid legal liability to a class of thousands by settling with the named class representative―a strategy known in consumer law circles as “picking off” a plaintiff. On April 12, 2016, the court held that the “pick off” tactic should not be allowed. The court reasoned that, if the strategy were permitted, the defendant could pick off named class plaintiffs indefinitely, and the claims of the remaining thousands of class members who were harmed by the defendant’s conduct would never be heard, thus defeating the purpose of a class action.
The case grappled with issues left open by the U.S. Supreme Court’s January 2016 decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 2016 WL 228345. In Gomez, the Supreme Court held that, if a defendant made an offer of judgment and the plaintiff didn’t accept it, the class action was not rendered moot. But the Supreme Court left open an “unanswered hypothetical”―it declined to say whether the pick-off maneuver would have been permissible if the defendant had actually placed the settlement funds in an escrow account and the district court had entered judgment in favor of the plaintiff.
2016 Award Winners team of Robert F. Daley, R. Scott Marshall and Brent M. Rosenthal
Robert F. Daley, R. Scott Marshall and Brent M. Rosenthal for Tooey v. AK Steel Corp.
The Officers and Trustees of the Pound Civil Justice Institute have bestowed the Institute’s 2016 Appellate Advocacy Award on a team of attorneys: Robert F. Daley of Robert Peirce & Associates, P.C. in Pittsburgh, PA; R. Scott Marshall of Nemeroff Law Firm, P.C. in Dallas, TX; Brent M. Rosenthal of Rosenthal Weiner LLP in Dallas, TX. They were honored for their distinguished work resulting in the Pennsylvania Supreme Court’s landmark decision in Tooey v. AK Steel Corp., 81 A.2d 851 (Pa. 2013). The award will be presented on July 23, 2016, at the Pound Fellows reception, 6:30-8:00 pm in Los Angeles, CA.
In Tooey, two former industrial workers were diagnosed with mesothelioma—a cancer caused by asbestos exposure, with a latency period of 30 to 50 years, that is nearly always terminal. Their diagnoses came well beyond the 300-week period (about 5½ years) allowed for claim filing by the Pennsylvania workers’ compensation statute. Since they were ineligible for statutory compensation benefits, their surviving spouses filed common-law wrongful death claims against their former employers. The defendants made the familiar argument that workers’ compensation is the “exclusive remedy” for workers, and that the plaintiffs thus were without a remedy for their husbands’ deaths, and moved to dismiss the common-law claims.
Daley, Marshall and Rosenthal took the plaintiffs’ cases and argued that the workers’ compensation act, by its own terms, provides that it does not apply to occupational diseases that manifest themselves more than 300 weeks after the last hazardous exposure. They contended that, under those circumstances, the exclusive remedy provision does not apply, and the plaintiffs were free to pursue their common law tort claims. To hold otherwise would deny them any chance of redress and deny them the benefit of the “quid pro quo” upon which workers’ compensation schemes have historically been justified.
The Pennsylvania Supreme Court held that, if a worker cannot claim benefits under the statute because of the long latency period of his occupational disease, the worker may pursue a common-law tort action against the employer, notwithstanding the statute’s “exclusive remedy” provision. The court recognized that it was “inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the [workers’ compensation act] or at common law.” (Tooey at 863.)
2015 Award Winner Samuel Issacharoff
Professor Samuel Issacharoff of NYU Law for In re Deepwater Horizon
The Officers and Trustees of the Pound Civil Justice Institute have bestowed the Institute’s inaugural Appellate Advocacy Award on Professor Samuel Issacharoff, of the New York University School of Law, for his distinguished work on the Deepwater Horizon class litigation. The award was presented on July 12, 2015, at the Pound Fellows’ receptionin Montreal, Quebec, Canada.
Professor Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at NYU. He was singled out for his brilliant and tireless appellate advocacy on behalf of hundreds of thousands of individuals and businesses who suffered calamitous losses in the Deepwater Horizon disaster. The April 20, 2010, explosion and fire at the BP oil company’s oil drilling platform in the Gulf of Mexico killed eleven platform workers and injured dozens of others. The resulting three-month-long discharge of over three million barrels of oil caused catastrophic physical and economic damage along the entire Gulf Coast of the United States.
After a class action was filed in federal court against BP and other responsible entities, class counsel negotiated a global settlement agreement, estimated by BP to be worth $14 billion. However, BP raised numerous challenges to the administration of the agreement by the U.S. District Court for the Eastern District of Louisiana. Retained by counsel for the claimant class early in the litigation to design the theory of the lawsuit, Professor Issacharoff spearheaded the class’s trial and appellate strategy, worked with the claimants’ counsel on their appellate briefs in the 5th Circuit and the U.S. Supreme Court, and served as lead counsel during oral arguments. The result was an unbroken series of appellate victories for the claimants, culminating in the Supreme Court’s denial of certiorari (BP Exploration & Production, Inc. v. Lake Eugenie Land & Development, Inc., 135 S.Ct. 754 (Dec. 8, 2014)).
In addition to his appellate practice, Professor Issacharoff has produced a monumental body of legal scholarship in the areas of Constitutional law, civil procedure, complex litigation and class actions, law and economic analyses of procedure and constitutionalism, the law of democracy, and the law of the political process. He is the author of numerous articles and books, including Civil Procedure (Foundation Press, 3d. edition, 2011); The Law of Democracy: Legal Structure of the Political Process (with Pamela Karlan and Richard Pildes) (Foundation Press, 4th. edition, 2012); and Fragile Democracies: Constitutional Courts in the Breach (Cambridge University Press, forthcoming 2015).