Appeals & Complex Briefing

Since its founding, the Appeals & Complex Briefing Department has filed dozens of merits and amicus briefs, including filings in the U.S. Supreme Court, federal courts of appeal, state supreme courts, federal district courts, and arbitrations. The Department provides a generalist perspective across practice areas with particular expertise in antitrust, arbitration, class certification, and pro-consumer litigation. Law firms and clients can obtain a free consultation and retain the practice with flexible compensation structures, including purely contingent arrangements.

In 2024, co-Chair Joshua Davis won a 9-0 victory at the U.S. Supreme Court on behalf of a terminated federal employee in Harrow v. Department of Defense, 2024 WL 2193874 (U.S. 2024). The National Civil Justice Institute awarded him the Appellate Advocacy Award for his work on this case. Kyla Gibboney is now lead counsel and argued the case when it returned to the Federal Circuit in 2026. In 2023, Mr. Davis won a Ninth Circuit antitrust appeal in Innovative Health, LLC v. Biosense Webster, Inc., 2024 WL 62948 (9th Cir. 2024), achieving a reversal of a district court order granting summary judgment. After the reversal, the jury sided with the plaintiffs, finding that Biosense had engaged in anticompetitive business practices and awarding the plaintiffs $442 million in trebled damages. The team won the American Antitrust Institute’s Outstanding Antitrust Litigation Achievement award. Additionally, Mr. Davis obtained a favorable ruling in the First Circuit Court of Appeals in Fraga v. Premium Retail Services, 61 F.4th 228 (1st Cir. 2023) (adopting Plaintiffs’ proposed standard for exempting certain workers from the Federal Arbitration Act, providing them their day in court) and recently argued Simon and Simon v. Align (challenging a summary judgment ruling in a refusal-to-deal case). Appellate courts look to Davis and firm Chair Eric Cramer for thought leadership on antitrust and class issues. Their article Antitrust, Class Certification, and the Politics of Procedure has been cited by multiple U.S. Courts of Appeal. See, e.g., In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015).

Co-chair Paul Bland has argued and won more than 40 cases that have led to reported decisions for consumers, workers, or other aggrieved claimants, including a 2019 win in the U.S. Supreme Court (Home Depot v. Jackson), and at least one victory in the state supreme courts of ten different states and six of the U.S. Courts of Appeal. Mr. Bland has handled dozens of successful challenges to forced arbitration clauses and has also successfully defeated federal preemption defenses in numerous cases, among other substantive appeals. He argued Osterhaus Pharmacy v. CVS Health (alleging that CVS Caremark used illegal Medicare loopholes to force independent pharmacies to accept unreasonable terms) and will argue Diaz de Leon v. Solar Mosaic (defending households from unfair lending practices), both before the Ninth Circuit. Mr. Bland also regularly serves as amicus counsel in the U.S. Supreme Court, representing forty pro-consumer groups in their brief opposing the removal of a Federal Trade Commissioner in Trump v. Slaughter. In April 2026, Mr. Bland represented a bipartisan group of Senators in Perkins Coie v. Department of Justice, opposing the Executive Orders targeting law firms for engaging in constitutionally protected activity. Bland has extensive experience representing plaintiffs and defending class certification at the appellate level. Recently, along with the team representing plaintiffs in the District Court in Ford v. Veterans Guardian VA Claim Consulting, he successfully opposed a 23(f) petition on behalf of disabled veterans, protecting their right to continue to trial as a certified class. He was also involved in the briefs in Spurlock v. Wexford Health Sources, Inc., where the U.S. Court of Appeals for the Fourth Circuit held that the damages class was properly certified in a constitutional challenge to medical treatment provided to incarcerated persons suffering from opioid use disorder. Mr. Bland continues to evaluate challenges to dozens of arbitration clauses across the country. For more than ten years, Mr. Bland served as the Executive Director at Public Justice, a national legal advocacy nonprofit organization, overseeing the organization’s litigation and advocacy, as well as operations, communications, and finance. Mr. Bland won the National Civil Justice Institute’s Appellate Advocacy Award twice, was awarded the 2024 Public Justice Legacy Award, was recognized as one of Lawdragon’s 500 Leading Lawyers in America, and received the Vern Countryman Award, the “highest honor in the field of consumer law.”

Mr. Davis and Matt Summers helped start (and serve on the steering committee for) the American Antitrust Institute’s Appellate Project. The Project brings together top antitrust appellate practitioners and academics to share advice, experience, and best practices with litigants with ongoing cases.

In 2025, Summers argued Cornish-Adebiyi v. Caesars Entertainment on behalf of the American Antitrust Institute as amicus in the Third Circuit (arguing that algorithmic collusion violates the antitrust laws) and PhantomALERT v. Apple in the D.C. Circuit (a tying and monopolization case). He recently won US v. Felton (a Seventh Circuit criminal appeal) and is lead counsel in OJ Commerce v. Nat’l Christmas Products (an Eleventh Circuit appeal challenging vertical price fixing).

Berger Montague has a 50+ year tradition of appellate success, including:

• Innovative Health, LLC v. Biosense Webster, Inc., 2024 WL 62948 (9th Cir. 2024) (reversing summary judgment, leading to $442 million in trebled damages)
• In re Abbott Lab’s, 96 F.4th 371 (3d Cir. 2024) (upholding district court’s use of the crime-fraud exception against a pharmaceutical company that had engaged in sham litigation. Berger Montague successfully developed briefing in this case against two former U.S. Solicitors General)
• In re Suboxone Antitrust Litig., 967 F.3d 264 (3d Cir. 2020) (upholding class certification that led to $385 million settlement for purchasers injured by a prescription drug monopolization effort)
• In re Lipitor Antitrust Litig., 868 F.3d 231 (3d Cir. 2017) (reviving claims alleging monopolization of two different drugs which led to $93 million and $39 million class action settlements that are pending approval)
• Cook v. Rockwell Int’l Corp., 790 F.3d 1088 (10th Cir. 2015) (paving the way to $375 million class action settlement for property owners against nuclear weapons facility with what then-Judge Gorsuch complimented as “judicial jiu jitsu”)
• In re K-Dur Antitrust Litig., 2013 WL 5180857 (3d Cir. 2013) (reversing dismissal and upholding certification of direct purchaser class in “pay for delay” drug case, leading to $60 million class action settlement);
• In re Hanford Nuclear Rsrv. Litig., 292 F.3d 1124 (9th Cir. 2002) (reversing 762-page order granting summary judgment for thousands of plaintiffs who were exposed to nuclear radiation)
• Bibeau v. Pac. Nw. Rsch. Found. Inc., 188 F.3d 1105 (9th Cir. 1999) (reversing summary judgment, providing client with his day in court for damages he suffered while incarcerated)

Appeals & Complex Briefing attorneys at Berger Montague are experienced trial court litigators. Alongside teams within and beyond the firm, they routinely drive successful results on dispositive motions, class certification, and motions to compel arbitration.

Contact Us To Learn More

We invite you to learn more about our Appeals & Complex Briefing team. Berger Montague welcomes referrals from other law firms, clients, and attorneys. For more information or to schedule a confidential discussion about a potential appeal, district court brief, amicus brief, or petition for certiorari, please fill out the contact form on the right, email us at info@bergermontague.com, or contact Joshua Davis or Paul Bland. We are available to evaluate potential appeals and complex briefing support in federal and state courts without charge.