Appeals are different. So are we.

Navigating the legally and procedurally complex landscape of a high-stakes appeal takes a different kind of lawyer. We have a team of dedicated appellate practitioners who specialize in just that—managing complicated appeals and assisting with high-stakes trial court litigation.

Collectively, our team of dedicated professionals has handled hundreds of appeals in all of the federal and state appellate courts in the Mountain West, in most other federal circuit courts, and in the U.S. Supreme Court. Our team also has provided trial support in complex civil cases of virtually every type.

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Appellate Client Results

Amicus Briefs
  • In a case involving the migratory bird rule, the United States Supreme Court upheld our amicus client’s position that the Army Corp of Engineers improperly asserted jurisdiction over isolated, instrastate waters.

  • The Tenth Circuit’s opinion referred to our amicus brief as the basis for upholding standing in a high-profile appeal involving a federal constitutional challenge to a state constitutional provision.

  • The Colorado Supreme Court followed the approach advocated in our amicus brief for the state bar association, holding that a party’s payment of a contingent fee to a witness, in violation of the ethics rules, does not warrant a per se exclusion of the witness’s testimony.

  • The Colorado Supreme Court accepted the argument of our client, the state bar association, that a lawyer may pay co-counsel’s attorney fees without violating the ethics rule that prohibits counsel from providing financial assistance to a client.

  • The Colorado Court of Appeals quoted from our amicus brief in a challenge to a state teacher tenure law.

  • The Colorado Court of Appeals adopted our client’s argument on the meaning of a state constitutional amendment governing the Great Outdoors Colorado program, which protected the program’s ability to fund a wider scope of projects.

Banking Appeals
  • Resolving a question of first impression, the Ninth Circuit adopted our argument that 12 U.S.C. § 1821(d)(6)(A)(ii), part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, is not merely a venue provision but defines the court’s subject matter jurisdiction, which required affirmance of dismissal of the claims against our bank client.

Bankruptcy Appeals
  • In a significant victory for our client and consumer lenders, the Tenth Circuit agreed that when a bankruptcy trustee avoids a lien, the remedy of avoidance is usually sufficient, and a money judgment against the creditor is neither required nor appropriate.

  • In an appeal from a bankruptcy court order interpreting a Chapter 11 plan involving a fund for future tort claimants, the federal district court agreed with our interpretation of the plan and its provisions for paying the future claimants.

Commercial Litigation Appeals
  • In a case of first impression, the Colorado Supreme Court reinstated our client’s claim for breach of a commercial rental contract and established that loss-of-use damages are recoverable under such contracts.

  • In consolidated appeals arising out of a complex commercial dispute, the Nevada Supreme Court rejected our adversary’s fraudulent inducement argument, and affirmed the district court’s order enforcing a prior settlement agreement in our client’s favor, the entry of summary judgment in our client’s favor in a separate lawsuit, and our client’s recovery of attorneys’ fees.

  • In a complex commercial dispute, the Colorado Court of Appeals held that a foreign guarantor was bound to the terms of its guaranty, affirmed a $6.7 million judgment for our client, and awarded appellate attorney fees.

  • In a dispute between an author and publisher, the Colorado Court of Appeals agreed that the author was not entitled to any royalties when his publishing contract was sold to another publisher.

Constitutional Law Appeals
  • In numerous appeals over multiple years, the Colorado Supreme Court accepted our arguments that the state Title Board properly fixed titles for our client’s initiatives to amend the Colorado Constitution.

Electric Power Appeals
  • The U.S. Supreme Court granted a stay of the Clean Power Plan pending litigation on the merits in the D.C. Circuit; we filed one of the five coordinated stay motions on behalf of our client and more than fifty other utility companies and allied parties.

  • The Wyoming Supreme Court accepted in full the position of our clients, a group of industrial electric power consumers, and affirmed a Public Service Commission decision that rejected a utility’s requested rate increase of over $91 million.

  • In an appeal from ordinances adopted to create a municipal power utility, the Colorado Supreme Court accepted our argument that the Colorado Court of Appeals erred in its finality analysis, and reversed and remanded for further proceedings.

Employee Benefits Appeals
  • The Tenth Circuit agreed with our client’s position that the district court had abused its discretion in relying on extra-record evidence to grant the plaintiff’s claim for long-term disability benefits under ERISA.

  • In multiple appeals and on varied bases, the Tenth Circuit reversed the entry of judgment for the claimants in ERISA cases, accepting the arguments of our clients, the plan administrators. The Supreme Court denied the claimants’ petitions for certiorari review.

  • In separate appeals, the Tenth Circuit held that ERISA preempts claims for bad faith breach of an insurance contract under Colorado and Wyoming law.

Employment Appeals
  • The Ninth Circuit affirmed a defense verdict in our employer client’s favor on wrongful discharge and retaliation claims and rejected the former employee’s instructional error and other arguments.

  • The Tenth Circuit affirmed the district court's dismissal of Americans with Disabilities Act claims against our client, concluding that the plaintiff had not proven he was “disabled” under the statute.

  • In a large class action involving fraud-based claims of employees who were terminated under a reduction-in-force, the Idaho Federal District Court denied class certification for lack of both typicality and predominance.

Environmental Appeals
  • In a lawsuit that made two trips to the Tenth Circuit, that court ultimately ordered reinstatement of the jury’s $177 million nuisance verdict, plus over $1 billion in prejudgment interest, in favor of our clients, owners of property damaged from plutonium that migrated from Rocky Flats, a federal nuclear weapons plant.  While the parties’ cross-petitions for certiorari were pending in the Supreme Court, the case settled for $375 million.

  • In a complex NEPA matter involving an attempt by environmental groups to shut down drilling in the San Juan Basin, the Tenth Circuit affirmed an order in our clients’ favor denying plaintiffs’ motion for preliminary injunction.

  • In post-trial motions after judgment involving a contract to remediate a Superfund site, the federal district court adopted our position that federal contract law, not Idaho law, governed whether the plaintiff was entitled to prejudgment interest, saving our client over $23 million.

  • The Fifth Circuit bucked the tide of routine rejection of claims under the National Environmental Policy Act, and held inadequate the Air Force's and FAA's environmental impact statement for the Realistic Bomber Training Initiative in West Texas.

  • The Ninth Circuit rejected the EPA’s jurisdictional arguments and permitted our client’s appeal of EPA enforcement orders to proceed to a decision on the merits.

  • The Ninth Circuit held that the EPA did not act arbitrarily or capriciously in allowing the State of Nevada to redesignate one of its clean air areas into two areas under the Clean Air Act, a ruling that allowed our mining company client to operate under less restrictive national air quality standards.

Oil, Gas, and Mining Appeals
  • After agreeing to hear our two Rule 23(f) appeals, the Tenth Circuit vacated orders certifying large statewide classes of Kansas and Oklahoma royalty owners and determined that the lower courts failed to follow recent Supreme Court precedent in certifying the classes.

  • In two large punitive statewide class actions brought by oil and gas royalty owners in Colorado and New Mexico, the federal district court denied certification based on our arguments that the named plaintiffs failed to prove both commonality and predominance.

  • Rejecting the plaintiffs' claimed multi-billion dollar interest in the Kasaghan oil field in the Caspian Sea, developed in part by our oil company client, the Tenth Circuit affirmed the entry of summary judgment for our client on statute of limitations grounds.

  • The Oklahoma Court of Civil Appeals reversed the district court’s certification of a statewide class of royalty interest owners.

  • The Colorado Court of Appeals upheld a multi-million dollar class settlement in an oil and gas underpaid royalties case, rejecting an unhappy class member’s challenge.

  • In a decision that has significantly limited oil and gas royalty owners’ rights, the Colorado Supreme Court reversed the lower appellate court and held that the putative class’s claim for allegedly underpaid natural gas royalty accrued on the date of the alleged breach of contract, not on the date of discovery of the alleged breach.

  • In a dispute between a pipeline company and a developer, the Tenth Circuit affirmed a judgment requiring the developer to incur the cost of relocating the pipeline to accommodate a new development.

  • In a significant appeal involving multi-million dollar mining royalty claims, the Ninth Circuit upheld summary judgment in favor of our client based on the doctrine of laches.

Real Estate Appeals
  • In a decision that clarified the distinction between contractual covenants and conditions, the Utah Supreme Court held that our client was entitled to recover actual and liquidated damages based on a seller’s failure to perform under a commercial real estate contract.

  • In an appeal involving a land use decision by our client, a Colorado county, the Colorado Court of Appeals reversed the trial court’s ruling that the county had improperly approved a cage free egg operation and remanded for reinstatement of our client’s approval of the operation.

Securities Fraud Appeals
  • The Tenth Circuit affirmed the judgment in favor of our client, a federal receiver in a securities fraud matter, holding that the claimant was properly denied any recovery from the receivership estate.

Tax Appeals
  • The Colorado Supreme Court held that taxpayers may deduct post-wellhead production costs in valuing oil and gas leaseholds for state property tax assessments.

Torts and Insurance Appeals
  • In a case of first impression, the Tenth Circuit affirmed summary judgment and upheld our client’s right to rescind a $3 million “key man” life insurance policy. The court agreed with our view of when an insurer becomes “chargeable with knowledge” of a fact concealed by the insured under unsettled Colorado law.

  • In two separate but related product liability cases involving defective heating hose, the Tenth Circuit affirmed large judgments for our clients and upheld prejudgment interest awards from the date of a defective product’s installation, which added almost $11 million to the judgments.

  • The Colorado Supreme Court exercised its original jurisdiction to reverse the trial court’s order requiring our client to produce sensitive medical records.

  • Reinstating the jury verdict in our developer client’s favor, the Colorado Supreme Court exercised its original jurisdiction to reverse the trial court’s order granting a new trial after a defense verdict on the plaintiff's premises liability claims.

  • In an appeal involving an explosion that leveled a building, the Colorado Court of Appeals agreed that the trial had been infected by multiple evidentiary errors and reversed the $6 million verdict the jury had rendered against our client.

Other Appeals
  • The Federal Circuit affirmed a $24 million judgment for our client, the inventor of an electric blender jar, rejecting the defendant’s multiple challenges to the jury’s finding of willful infringement.

  • Accepting our construction of damages provisions in the federal Computer Fraud and Abuse Act, the Ninth Circuit affirmed a jury verdict in favor of our client.

Significant Pro Bono Appeals
  • In a pro bono civil rights case, the Tenth Circuit twice reversed the entry of judgment against our client, holding that the district court’s rulings on absolute and qualified immunity were wrong as a matter of law.

  • A pro bono appeal for our adult adoptee client led to a Colorado Court of Appeals decision giving all persons adopted in Colorado between 1951 and 1967 full access to all court records and other papers related to their adoptions.

  • The Colorado Court of Appeals reversed the district court’s adoption placement and remanded for proceedings to determine whether the toddler child should be placed with our pro bono clients, the foster parents.

Appellate News

Appellate Publications

Fellow: American Academy of Appellate Lawyers

Marcy Glenn is the second active Fellow in Colorado
Stephen Masciocchi is the fourth active Fellow in Colorado
Kyle Anne Gray is the fourth active Fellow in Montana

Best Lawyers® Appellate Practice 2022

Best Lawyers
Kyle Gray: Appellate Practice, Billings
Marcy Glenn: Appellate Practice, Denver
Stephen Masciocchi: Appellate Practice, Denver

Best Lawyers: Ones to Watch
John Sullivan: Appellate Practice, Billings
William Smith: Appellate Practice, Boise
Jessica Whelan: Appellate Practice, Las Vegas

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