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Friday, January 16, 2015

One of the tenets of the firm’s practice philosophy is that the same lawyers who litigate and try the case should handle the appeal.  Not only is this practice more efficient for the client, but it also makes better lawyers.  The early decision on how to present your case should be shaped by a view towards how to create a record defensible on appeal.  The firm’s attorneys have always been taught to analyze each tactical decision throughout the litigation not only from the perspective of the trial judge, jury, or arbitrator, but also from the often distant perspective of an appellate court.  A win is not a win unless and until the appellate court agrees.

Homer Bonner Jacobs Ortiz also has a busy appellate practice handling appeals related to matters for which it was not trial counsel.  Whether or not trial counsel made all the right moves, the fact is that judges, juries, and arbitrators do not always get it right.

The firm has experience at all levels of state and federal courts, as well as several arbitral forums.  We have appeared before the United States Supreme Court, the Florida Supreme Court, Florida District Courts of Appeal, the Eleventh Circuit Court of Appeals, and numerous other federal and state appellate courts and administrative agencies throughout the country.  Recent decisions in appeals handled by the firm include:

  • Ferguson v. Corinthian Colleges, Inc., 733 F.3d 928 (9th Cir. 2013).  The firm drafted the appeal of the district court’s partial denial of our client’s motion to compel arbitration as to the plaintiffs’ claims for injunction.  We were able to obtain the reversal of the district court order for improperly following California’s preempted Broughton-Cruz rule.  This was the first 9th Circuit case that unequivocally held that the Federal Arbitration Act preempts Broughton-Cruz. Click Here to hear the oral argument
  • Sequioa Education, Inc. v. Superior Court of Alameda County, No. RG11597698, 2013 WL 5615596 (Cal. Ct. App. October 15, 2013).  The firm successfully obtained the reversal of a California trial court order that had vacated a clause construction award in favor of our client on the grounds that the arbitrator’s interpretation of the agreement was insulated from review.
  • Reed v. Florida Metropolitan University, Inc., 681 F.3d 630 (5th Cir. 2012).  The firm successfully obtained vacatur of an arbitral clause construction award where the arbitrator had ruled that he had the ability to conduct a class arbitration on the grounds that the contract did not bar class arbitration.
  • Wolf v. Kennelly, 574 F.3d 406 (7th Cir. 2009).  The firm successfully appealed the district court’s ruling barring our client from obtaining an award of sanctions for the opposing party’s improper removal.  We were able to meet the high burden of proving that the district court abused its discretion by refusing to award fees when the removal was clearly foreclosed by established law.
  • Lonestar Alternative Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC, 10 So. 3d 1169 (Fla. 3d DCA 2009).  The firm represented condominium brokers in an action against the developer for failing to pay commissions.  We obtained the reversal of the trial court’s dismissal of the brokers’ action on grounds that the developer had breached the commission agreement.
  • CFTC v. Wilshire Investment Management Corp., 531 F.3d 1339 (11th Cir. 2008).  In this 11th Circuit opinion, the firm obtained a reversal of an award of restitution in an enforcement action on the grounds that equitable restitution under the CFTC Act could not be based on customer losses.
  • CFTC v. Erskine, 512 F.3d 309 (6th Cir. 2008).  The firm successfully opposed the CFTC’s appeal of a summary judgment order holding that the defendants’ forex transactions were outside of the CFTC’s jurisdiction.  Our firm drafted the brief and cooperated with co-counsel in obtaining an affirmance by the 6th Circuit.  This ruling, together with the rulings in CFTC v. Zelener, 373 F.3d 861 (7th Cir. 2004), and CFTC v. Wilshire Investment Management Corp., 531 F.3d 1339 (11th Cir. 2008) (see above), precipitated certain changes in the law in the Dodd-Frank Act.
  • Melea, Ltd. v. Jawer SA, 511 F.3d 1060 (10th Cir. 2007).  The firm represented a Swiss fiduciary sued in Colorado.  In this appeal, we were able to obtain an affirmance of the district court’s order dismissing the case for lack of personal jurisdiction because the cause of action did not arise out of the company’s contacts with the state.
  • Gables Club Marina, LLC v. Gables Condominium and Club Assoc., Inc., 948 So. 2d 21 (Fla. 3d DCA 2006). Through this appeal the firm was able to vacate a purported default based on actions taken in the trial court that were unknown to our client.  We demonstrated that our client had acted with due diligence in asserting its defenses.
  • American Financial Trading Corp. v. Bauer, 828 So. 2d 1071 (Fla. 4th DCA 2002). The firm was able to obtain the reversal of an order of dismissal for lack of personal jurisdiction under Florida’s long-arm statute by hiring a commodity broker in Florida.

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