Appellate

• Argued and won in the US Court of Appeals for the First Circuit SEC v. Commonwealth Equity Services, LLC (2025), establishing that the materiality of errors or omissions in an investment adviser’s disclosure was a jury question and limiting disgorgement awards.
• Argued and won in the Georgia Court of Appeals POP 3 Ravinia, LLC v. Embark Holdco Mgt., LLC (2022) concerning "mere continuation" successor liability of asset transferee.
• Argued and won in the US Court of Appeals for the Ninth Circuit Van Tassel v. State Farm (2021) defeating certification of a Rule 23 (b)(3) damages class action alleging underpayment of “diminished value” with auto insurance claims.

Eversheds Sutherland’s appellate attorneys also provide valuable assistance to clients during trial court proceedings. Working closely as part of the trial team, appellate attorneys develop legal theories, draft complex motions and jury charges, ensure preservation of the record for appeal, and handle interlocutory appeals and mandamus proceedings that arise during trial court litigation. Most of our appellate attorneys are also experienced trial lawyers who bring exceptional skills to help clients win in the trial courts and on appeal.

We often submit briefs to appellate courts on behalf of amicus curiae, usually associations or groups who want their interests to be represented in precedent-setting appeals. An effective amicus brief does not simply echo or restate arguments made in briefing submitted by a party. Instead, the useful amicus brief—one likely to be considered by the court—brings the broader context and policy implications of the decision at hand to the court’s attention. The “Brandeis Brief,” which presents economic and other social science data bearing on an issue before the court, is the prototype. A strong understanding of our clients’ businesses and industries enables us to identify key policy issues and arguments for influential amicus curiae briefs.

In Bullock v. BankChampaign, N.A., the Supreme Court of the United States agreed with our client’s interpretation of the term “defalcation” found among the exceptions to bankruptcy discharge. Partner Thomas Byrne argued the case before the Supreme Court. In ruling for our client, the Court rejected the holdings of all of the lower courts and the contrary arguments of, among others, the U.S. Solicitor General.

Our client Randy Bullock had been the trustee of a life insurance trust established by his father. Initially, at the direction of his father, Randy made loans from the trust to his mother and to a business in which Randy had an interest, and he made similar loans later, all of which were repaid to the trust with interest. Other beneficiaries of the trust contended, however, that these loans constituted self-dealing. A state court in Illinois agreed, entering a judgment against Randy for breach of fiduciary duty for more than $250,000.

Years later, Randy sought to discharge this debt through a Chapter 7 bankruptcy filing in Alabama. But the bankruptcy judge ruled that no discharge was available because the self-dealing constituted “defalcation,” an exception to discharge under the Bankruptcy Code. The district court and the U.S. Court of Appeals for the Eleventh Circuit, noting a circuit split on the definition of defalcation, agreed and affirmed.

The case was brought to us after the Eleventh Circuit’s decision by the Emory Law School Supreme Court Advocacy Program. Working with the Emory students, we prepared and filed a petition for certiorari, which the Supreme Court granted. The case became even more challenging when the Solicitor General of the United States weighed in to support BankChampaign, the successor trustee, arguing that the defalcation exception to discharge should apply. To that point, the Solicitor General had been on the winning side of 13 consecutive bankruptcy cases in the Supreme Court. Fourteen bankruptcy professors also filed a brief in support of the Bank’s position. The briefing featured case law and historical background going back to the 1830s. After oral argument, the Supreme Court ultimately ruled 9-0 in our client’s favor, holding that the undefined term “defalcation” in the Bankruptcy Code, like the terms “larceny” and “embezzlement,” which appear close beside it, includes a culpable state of mind requirement. The Court remanded for further proceedings, and the case was resolved on remand with Randy obtaining his discharge.