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Bernstein Liebhard LLP
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Supreme Court & Appellate Practice
The Firm’s Supreme Court and Appellate Practice Group handles all the Firm’s appeals and prepares amicus curiae (friend of the court) briefs on a pro bono basis in important cases affecting the Firm’s clients.
Significantly, the Group consults with our litigation and trial teams from the earliest stages of every litigation to ensure that our clients are well positioned to win not only at the trial level, but also in the event of an appeal by either side.
Group members include partners Felecia Stern and Christian Siebott, both of whom clerked for the United States Court of Appeals for the Second Circuit, and associate Brian E. Lehman, who clerked in the United States Court of Appeals for the Ninth Circuit and the United States District Court for the Southern District of New York.
The securities cases in which the Firm has filed important amicus curiae briefs include: Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., No. 06-43, and Tellabs, Inc. v. Makor Issues & Rights, Ltd., No. 06-484, both before the United States Supreme Court, and In re Dynex Capital Securities Litigation, No. 06-2902-cv, before the Second Circuit. These briefs were filed on behalf of states and public pension funds in three cases concerning critical issues of investor protection and securities litigation. These states and public pension funds collectively manage approximately $568 billion of pension funds, represent millions of pensioners, and have an acute interest in ensuring that investor rights are protected.
The Firm also filed an amicus curiae brief in the Supreme Court on behalf of Professor Arthur R. Miller, co-author of the authoritative Federal Practice and Procedure, in Exxon Shipping Company v. Baker, No. 07-219. The appeal, arising from the protracted litigation following the 1989 Exxon Valdez oil spill, addressed complex issues of procedural law, including the proper application of Federal Rule of Civil Procedure 50.
In August 2008, the Firm’s Supreme Court and Appellate Practice Group filed a brief with the U.S. Supreme Court in Wyeth v. Levine, No. 06-1249. The Court issued its ruling in a landmark decision in March 2009. The Court concluded that FDA-approved labeling of pharmaceutical drugs does not preempt state law product liability claims for injuries caused by the drugs. The Firm's Supreme Court and Appellate Practice Group prepared the amicus brief on behalf of various doctors and third-party payer union health and welfare funds.
On July 1, 2009, the Supreme Court and Appellate Practice Group filed an amicus curiae (friend-of-the-court) brief with the United States Court of Appeals for the Second Circuit in UCFW Local 1776 v. Eli Lilly and Co., 09-0222-CV, on behalf of the AARP and Prescription Access Litigation LLC ("PAL") in support of plaintiff-appellees. The AARP is a nonpartisan, nonprofit organization of nearly forty million members that is dedicated to addressing the needs and interests of people 50 and over, including advocating for access to affordable health care. PAL is a national coalition of more than 130 organizations in 36 states and the District of Columbia that seeks to make prescription drugs affordable for consumers by challenging illegal pricing tactics and deceptive marketing by pharmaceutical companies and others.
In October 2009, Bernstein Liebhard filed an amicus curiae brief in the United States Supreme Court in Merck & Co. v. Richard Reynolds, No. 08-905 (U.S.). The Court will resolve how to define the deadline for filing a securities fraud lawsuit under federal law. While there is broad agreement among lower courts that the law’s two-year filing period for such lawsuits begins to run once an investor becomes aware that fraud may have occurred, those courts are widely split on how to apply that standard. At issue in the Merck case is the view adopted by the Third Circuit Court of Appeals, which is that the investor has no duty to investigate suspicion of fraud, and the two-year filing period does not begin to run until the investor comes upon evidence of scienter, i.e., that the fraud was intentional. Bernstein Liebhard argued that a plain reading of the statute of limitations – “two years after discovery of the facts constituting the violation” – can only mean that the clock starts running when the plaintiff actually discovers facts sufficient to state a claim.
