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Appellate Practice

Ice Miller's Appellate Practice Group has extensive experience representing clients in state and federal courts of appeals across the country on a broad range of matters, including challenges to the constitutionality of federal and state statutes, products liability, issues of arbitrability, contract disputes, and claims arising under the Computer Fraud and Abuse Act, the False Claims Act, and the Labor Management Relations Act.

During the last 15 years, Ice Miller has appeared in more than 150 cases before the federal courts of appeals and more than 250 cases before state courts of appeals, including more than 50 cases before state supreme courts. For example, the Firm has represented:
  • a national gaming company in serial challenges to the constitutionality of a State Constitutional Amendment, Statutes, and Administrative Code sections permitting the implementation of casino gambling and the expansion of the State Lottery; and
  • a state agency in challenges to the constitutionality of legislation authorizing the agency to lease the state-owned toll road to a private entity, a $3.8 billion transaction. 
The Appellate Practice Group collaborates with trial counsel to draft critical motions and to identify and preserve appellate issues, draft amicus briefs on legal and policy issues of key importance to clients, and provide clients with a critical "fresh look" at the work performed by another firm.

Representative Experience

State ex rel. Walgate v. Kasich, 147 Ohio St. 3d 1, 2016-Ohio-1176, 59 N.E.3d 1240.  Represented a national gaming company in serial challenges to the constitutionality of a state constitutional amendment, statutes, and administrative code sections permitting the implementation of casino gambling, and the expansion of the State Lottery.  Case largely dismissed on standing grounds, and affirmed by the intermediate appellate court, and Ohio Supreme Court.  
Fidlar Techs. v. LPS Real Estate Data Sols., Inc., 810 F.3d 1075 (7th Cir. 2016). Defended a national data analytics company in the trial court and on appeal in litigation brought by software company alleging violations of the federal Computer Fraud and Abuse Act and a state computer tampering statute related to “web harvesting” practices. Summary judgment affirmed by Seventh Circuit.
In re Nexium Esomeprazole, Nos. 14–56845, 15–56484, 2016 WL 6298741 (9th Cir. Oct. 28, 2016). Represented large pharmaceutical and biopharmaceutical company in the district court and on appeal in multi-district product liability litigation relating to the drug Nexium.  The Ninth Circuit affirmed the district court’s ruling granting summary judgment in full in favor of all defendants.
In re Tribune Co. Fraudulent Conveyance Litig., 818 F.3d 98 (2d Cir. 2016), petition for cert. filed, (U.S. Sept. 12, 2016) (No.16-317). Represented numerous public pension funds in response to state law constructive and intentional fraudulent conveyance claims arising from the leveraged buy out of The Tribute Company and its subsequent bank bankruptcy.  Served on the defense Executive Committee for this complex multi-district litigation matter.
Butts v. OMG, Inc., No. 14–3962, 2015 WL 2055996 (6th Cir. May 4, 2015). Obtained affirmance of summary judgment in favor of our client, supplier of adhesive and applicator tools, in product liability claim where plaintiff’s injury was not foreseeable and therefore, the tool was not defective under the Act. 
Elite Int'l Enter., Inc. v. Norwall Grp., Inc., Nos. 14–2272, 14–2317, 2015 WL 5845860 (6th Cir. Oct. 8, 2015). Defended large wallpaper manufacturer in litigation brought by one of its agents/distributors claiming breach of contract.  Represented manufacturer on appeal on the issue of the proper standard for calculating lost profit damages in a breach of distribution contract case. 
Clark v. Lender Processing Servs., No.13–3799, 2014 WL 1408891 (6th Cir. April 14, 2014). Represented national company providing loan management services in successful affirmance of a class action claiming violations of the OCSPA and FDCPA.
Old Nat. Bancorp v. Hanover College, 15 N.E.3d 574 (Ind. 2014). Represented plaintiff beneficiary Hanover College in litigation to terminate an $11 million trust and trustee Old Nat. Bancorp’s management of the trust.  Obtained favorable outcome at trial court, and successfully moved to dismiss the appeal on standing grounds.  Ultimately, the Indiana Supreme Court dismissed Old National’s appeal.
Int'l Bus. Machines Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013).  Represented third-party subcontractor on appeal in an issue of first impression in Indiana regarding a third-party’s ability to obtain compensation for costs incurred in responding to discovery requests.
Kowalke v. Swiss-Am. Trading Corp., No.12–4125, 2013 WL 1705012 (6th Cir. April 19, 2013). Represented national retailer of gold and silver coins in the district court and on appeal against plaintiff’s fraudulent misrepresentation claims. Summary judgment in favor of our client affirmed by the Sixth Circuit.
Halasa v. ITT Educ. Servs., Inc., 690 F.3d 844 (7th Cir. 2012). Defended leading technical institute against former employee’s claim under the False Claims Act. Successfully obtained affirmance of district court’s order dismissing former employee’s claim and awarding fees and costs to defendant. 

Interface Fin. Grp., Inc. v. Margagliotti, 9th Dist. Summit No. 26217,  2012-Ohio-3666. Represented defendant against factoring company seeking recovery of an account relating to a construction project.  Successfully obtained reversal on appeal of the trial court’s order granting summary judgment to plaintiff. 
HDNet LLC v. N. Am. Boxing Council, 972 N.E.2d 920 (Ind. Ct. App. 2012). Obtained reversal of partial summary judgment order against cable television channel on the basis that plaintiff sports sanctioning body’s claims were preempted by Indiana Uniform Trade Secrets Act.

Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 08-4550, 2010 WL 2640401 (6th Cir. June 29, 2010). Defended large manufacturer of critical care products against manufacturer and distributor’s claims alleging violations of a Purchase Agreement and a Lease Agreement. Prevailed on summary judgment on substantial aspects of plaintiff’s affirmative claims and defended the client in the trial court and on appeal. 
Am. Bank v. City of Menasha, 627 F.3d 261 (7th Cir. 2010). Obtained reversal of district court’s order enjoining a private securities plaintiff from gaining access to records that were subject to inspection under Wisconsin’s public-records law

Carlisle v. Deere & Co., 576 F.3d 649 (7th Cir. 2009). Represented national company against purchaser’s breach of warranty claim.  Seventh Circuit affirmed the district court’s order dismissing plaintiffs’ claim.

Bell v. DaimlerChrysler Corp., 547 F.3d 796 (7th Cir. 2008).
Represented auto manufacturer in defense of claims by laid-off workers that the Company failed to recall these workers for later job openings. Case dismissed by district court for failure to exhaust intra-union remedies.  Unanimously affirmed by the Seventh Circuit. 

Baude v. Heath, 538 F.3d 608 (7th Cir. 2008).  Represented industry group in defending state law which permitted mail order shipment of alcohol within the state from a challenge by out of state plaintiffs under the dormant commerce clause.  United States Court of Appeals for the Seventh Circuit held that plaintiffs had failed to establish the law was unconstitutional. 

Bonney v. Indiana Fin. Auth., 849 N.E.2d 473 (Ind. 2006).  Represented the Indiana Finance Authority in multiple challenges to the constitutionality of legislation authorizing the Indiana Finance Authority to lease the state-owned toll road to a private entity, a $3.8 billion transaction.  The trial court rejected these challenges to the constitutionality of the legislation, which was affirmed by the Indiana Supreme Court.
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