Appeals

Waymaker has extensive experience in federal and state appellate courts across the country. We have argued a wide range of subject matters on appeal. In recent years, our arguments have covered subject matters including copyright law, the federal RICO statute, free speech rights, cyberbullying, anti-SLAPP law, forum non conveniens, insurance, general commercial disputes, and arbitration agreements. We meticulously prepare appellate briefs that focus on critical, dispositive issues. We then hone argument to address only the most critical points and to prepare for questions from the bench. Generally, our approach has led to success.

In one notable group of cases, we represented a disruptive new technology company that was sued by the major broadcast networks for copyright infringement. Our client claimed that it had a statutory right to transmit broadcast television over the Internet as a “cable system” under the Copyright Act of 1976. The dispute between the parties attracted the attention of the media, with the Los Angeles Times reporting in an editorial that the case “could usher in a new generation of pay TV services online[.]” Although oral argument in the D.C. Circuit was scheduled for 15 minutes per side, the three-judge appellate panel (Merrick Garland, Brett Kavanaugh, and Patricia Millet) conducted oral argument for over two hours (Ryan Baker argued). At the end of the argument, then Presiding Chief Judge Merrick Garland commended the parties for their “excellent oral argument.” Shortly after that argument, the parties commenced settlement negotiations. Our client obtained a favorable confidential settlement.

In a high-profile anti-SLAPP case, we won a unanimous victory in the California Supreme Court that reversed the decisions of the lower courts. Our client had sued another business for trade libel, alleging that the defendant had disparaged it in confidential reports to on-line advertisers. The trial court dismissed the lawsuit on the ground that it was barred by California’s anti-SLAPP statute, which was designed to guard against the use of the courts to intimidate or punish people for exercising their First Amendment rights. The California Supreme Court agreed to review the case. It unanimously agreed with our argument that the speech at issue was not protected. As a result, our client’s trade libel lawsuit was reinstated. The Court’s published opinion in our case established a new legal test for the catch-all provision in the anti-SLAPP statute, which already has greatly influenced subsequent judicial decisions.

On occasion, we have prepared amicus briefs on behalf of clients on important legal issues that are relevant to their businesses. We have filed amicus briefs before the U.S. Supreme Court, which have attracted the attention of the justices and influenced questioning during oral argument.

Representative Engagements:

• Camargo v. Sunnova Energy Systems, Inc.
  Baker Marquart achieved a state court appellate victory on March 3, 2020, when the California Court of Appeal reversed a trial court order in Camargo v. Sunnova Energy Corporation, and remanded the case for further proceedings consistent with the opinion. 
  
  Sunnova had moved to compel arbitration, pursuant to a written arbitration agreement between the parties.  The trial court denied the motion on the grounds of unconscionability not raised by Camargo.  The Court of Appeal reversed, agreeing with Sunnova that the trial court erred in making its decision without giving Sunnova an opportunity to brief the issue and present evidence.  In making its finding, the Court relied on Civil Code section 1670.5(b), which requires a trial court to allow parties to present evidence as to the “commercial setting, purpose and effect” of an agreement, where unconscionability is claimed

• McMillan v. Chaker, et al.
  Baker Marquart achieved another Ninth Circuit victory on January 27, 2020, when the Ninth Circuit affirmed the Southern District of California’s ruling in McMillan, et al. v. Chaker, et al. In the case, plaintiffs argued defendants violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO) based on the predicate act of extortion by disrupting plaintiffs’ right to practice law and publish decisions on the internet free of threats. The appellate court upheld the district court’s finding that these allegations were insufficient to state a RICO claim as a matter of law.
  
  Extortion as the predicate act necessary to establish a RICO violation requires a plaintiff to allege that a defendant “obtained something of value” from plaintiff. In this case, the Court found plaintiffs’ claim deficient because plaintiffs did not allege defendant obtained property that could be “exercised, transferred or sold.” The Ninth Circuit affirmed dismissal of the complaint in its entirety.

• FilmOn.com v. DoubleVerify, Inc.
  Won an anti-SLAPP appeal before the California Supreme Court and reversed lower court decisions that had dismissed a trade libel lawsuit. Defendant had made allegedly defamatory statements in confidential reports to advertisers, which negatively affected client’s advertising revenue. The trial court dismissed the lawsuit based on California’s anti-SLAPP law. We petitioned the California Supreme Court for review. Following oral argument, the Court unanimously reversed the lower court decisions, and reversed the dismissal of the client’s trade libel lawsuit. In a published opinion, the California Supreme Court created a new two-part legal test to govern cases under the catch-all provision.

• David v. Textor
  Won an appeal before the Florida District Court of Appeals in a free speech dispute involving Florida’s cyberstalking law. The trial court had found that Waymaker’s client had violated the cyberstalking law by sending threatening text messages and emails to a competitor in a business dispute and by posting information about the plaintiff on social media and other on-line forums. The appellate court unanimously reversed, ruling that Waymaker client’s conduct did not constitute cyberstalking and that an injunction violated the client’s free speech rights under the U.S. Constitution.

• American Broadcasting Companies, Inc. v. Aereo, Inc.
  Submitted an influential amicus brief in a copyright dispute before the U.S. Supreme Court in a case with important implications for Waymaker’s client. In an amicus brief, Waymaker argued that the dispute could be decided on an alternative legal theory not briefed by the actual parties or any other amici. Several Justices seized on this issue during oral argument and questioned counsel about it. The court’s majority opinion embraced much of the language in Waymaker’s brief. Though the client was not a party to this dispute, the Supreme Court’s opinion was of immense importance to the client and highly effective in helping the client build its own legal case in a similar dispute.

• FilmOn X, LLC v. Fox Television Stations, Inc.
  Successfully defended a new media company sued by the five major broadcast networks in a copyright dispute before the D.C. Circuit. We argued that its client—which used the Internet to retransmit broadcast television over the Internet—qualified as a modern-day “cable system” and was entitled to a statutory copyright license under the Copyright Act of 1976. Shortly after the two-hour long oral argument, the client obtained a favorable settlement on confidential terms.

• Whittaker v. Glaser Weil Fink Howard Avchen & Shapiro LLP
  Successfully petitioned the appellate court for interlocutory relief and successfully revived a breach of fiduciary duty claim brought by the firm’s client against a law firm in a legal malpractice action. The trial court had granted a demurrer in favor of the law firm, dismissing a breach of fiduciary duty claim against it. Waymaker filed a petition for interlocutory relief with the California Court of Appeal. The appellate court granted a preemptory writ of mandate and ordered the trial court to reconsider its decision. The trial court subsequently reversed its own order and ruled in the client’s favor.

• Mattel, Inc. v. MGA Entertainment
  Successfully represented Mattel in one chapter in the highly publicized legal battle over Barbie and Bratz dolls concerning an insurance indemnity and subrogation issue. The Ninth Circuit agreed with Waymaker’s argument that no further insurance payments were required, as the issue had not been properly raised in the trial court and was therefore waived.

• Jones v. Jacobson
  Won affirmance of trial court’s denial of a motion to compel arbitration because no defendant was party to the agreement to arbitrate. The defendants, a group of Societe Generale affiliates, had moved to compel the Waymaker’s client to arbitrate the dispute based on a contract the client had signed with another entity affiliated with Societe Generale. In a published opinion, the court of appeal found that “[e]ven the strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement or who have not authorized anyone to act for them in executing such an agreement.” The case then proceeded in the trial court and was eventually favorably resolved on confidential terms.