Appellate Practice
Practice Highlights
Representing Plaintiff in a trademark lawsuit against entertainment company in connection with the use of an infringing mark in a major movie picture. After both the district court and the Ninth Circuit ruled in favor of Defendant, DTO filed a cert petition with the United States Supreme Court. Recently, the Supreme Court granted the petition, and the case has been remanded back to the district court for further proceedings.
Appellate Practice
Successful appellate advocacy starts at the trial court level: ensuring that the right evidence comes in, the wrong evidence stays out, the right arguments are made, and the record on appeal will be fully preserved. That said, we don’t always have the luxury of overseeing a case at the trial court level—some cases come to us after the court has entered judgment, and all has been said and done.
Irrespective of whether we were trial counsel or not, our goal is the same: to craft persuasive appellate briefs with an eye towards featuring powerful arguments in support of the result our client needs, be it affirmance or reversal. When we are not representing our clients in a direct appeal, we are crafting amicus briefs on their behalf in support of a favorable legal position. Our team includes five former federal clerks, and our lawyers have bar admissions to the U.S. Supreme Court and numerous circuits of the U.S. Court of Appeals.
Experience
Represented manufacturer in a class action filed in the Eastern District of New York alleging supplement is falsely advertised as “fish oil” because the supplement was in ethyl ester form, as opposed to triglyceride form. DTO filed a motion to dismiss arguing no reasonable consumer would be dismissed, and in any event, federal law preempted Plaintiff’s state law claims. The motion was granted in full. Plaintiff appealed to the Second Circuit Court of Appeals. Oral argument took place on November 22, 2023. The Second Circuit affirmed dismissal in December 2023.
Represented major tech company in a false advertising class action, where Plaintiff alleged in the District of Delaware that Defendants misrepresented the speed of graphics cards in certain computers. DTO was retained to handle the appeal to the Third Circuit. On September 7, 2023, the Third Circuit affirmed the lower court’s dismissal of the putative class action, ending the case.
Represented manufacturer and retailer in a false advertising class action filed in the Southern District of California in which Plaintiff alleged a Ginkgo Biloba product was falsely advertised. DTO filed a motion for summary judgment arguing the false advertising claims were preempted under the Federal Food, Drug, and Cosmetic Act (FDCA) given the scientific evidence demonstrated they were substantiated as the FDCA requires. The district court granted this motion in 2019, which the Plaintiff appealed to the Ninth Circuit. Oral argument took place in January 2021 but, after a year, no decision had been issued. In January 2022, Plaintiff moved to dismiss the appeal, which the Ninth Circuit granted, bringing an end to the longstanding lawsuit.
Represented Defendant at trial and on appeal before the Federal Circuit in a matter where there was a stipulation to infringement. Limited award to approximately 5% of Plaintiff’s total demand at trial and then secured affirmance of limited award on appeal.
Represented Plaintiff-Appellee in the Ninth Circuit appeal of a trademark infringement case. Secured affirmance of our trial victory and the permanent injunction issued by the judge in a published opinion.
