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Quarles & Brady 2019 Appellate Year in Review

Appellate Year in Review E. King Poor, James E. Goldschmidt, Kaitlin M. Phillips

Cross-pollination. In addition to the botanical meaning of what bees do, cross-pollination means the sharing of knowledge, ideas, or approaches. And like bees, our appellate lawyers work to cross-pollinate.

Every appeal, whatever the subject matter, requires asking new questions. What are the costs, benefits, and risks of pursuing an appeal or defending it? What issues raised in the trial court should be retained and what should be cut?

Such questions call for an active and candid sharing of ideas among our clients as well as between trial and appellate counsel.

In 2019, our appellate lawyers again represented our clients in appeals in reviewing courts across the country in a wide variety of cases. We share a sample of those cases with you here—and as another way of cross-pollinating.


Antitrust Litigation

Mountain Crest SRL, LLC v. Anheuser-Busch InBev SA/NV, 937 F.3d 1067 (7th Cir.)

The act of state doctrine was at the center of this appeal. Here, the Seventh Circuit affirmed the dismissal of antitrust claims based on Ontario’s regulation of the retail sale of beer. The plaintiff claimed that Ontario’s restrictions on package sizes made it too difficult for it to export beer to the province, and blamed Anheuser-Busch and Molson Coors for the restrictions. The Seventh Circuit rejected this claim and held that an antitrust plaintiff cannot use the Sherman Act to invalidate the official acts of foreign governments.


Appellate and Civil Procedure

Custer v. Cerro Flow Products, Inc., 2019 IL App (5th) 190285

The appellate court granted an emergency stay of a jury trial in progress to consider whether the trial court could default our client as a discovery sanction. In vacating the default, the appellate court held that it had jurisdiction over such an interlocutory appeal and ruled that the trial court had inadequate evidence to impose such a sanction.

Rohan Mgmt., Inc. v. Jantzen ex rel. County of Mohave, 246 Ariz. 168 (Ariz. App.)

The court of appeals decided this case of first impression to interpret the Arizona statute that determines venue for the involuntary judicial dissolution of a limited liability company (LLC). The court clarified that while this statute identifies the LLC’s “known place of business” as a preferred venue, this is not the exclusive venue for such actions.


Civil Rights

Lusk v. Cole, 779 Fed. Appx. 403 (7th Cir.)

The Seventh Circuit overturned the trial court’s ruling that our prisoner client had not exhausted prison administrative remedies arising from his civil rights claim. The court concluded that our client had properly followed prison rules in pursuing his claim and rejected prison officials’ argument that submitting an internal appeal in another inmate’s envelope violated prison regulations.

State v. Fitzgerald, 387 Wis. 2d 394 (Wis.)

Does Wisconsin’s involuntary medication statute violate due process? The Wisconsin Supreme Court said yes, finding the statute contrary to United States Supreme Court precedent. Quarles & Brady submitted an amicus brief urging this result on behalf of the National Association for Criminal Defense Lawyers, Bazelon Center for Mental Health Law, National Disability Rights Network, and Disability Rights Wisconsin.


Distributorship Litigation

Two Brothers Distributing v. Valero Marketing and Supply Co., 769 Fed. Appx. 408 (9th Cir.)

The Ninth Circuit affirmed the dismissal of claims by gasoline retailers that our client, Valero, had engaged in unfair pricing activities for the fuel that it sold. In reaching this decision, the court concluded that claims based on oral representations failed under the Uniform Commercial Code and that there was also no evidence of improper pricing under theories of an implied covenant of good faith, interference with a prospective business relationship, or federal price discrimination law.


Insurance and Securities Regulation

Van Dyke v. White, 2019 IL 121452

In a case of first impression, the Illinois Supreme Court held that the sale of the fixed indexed annuities by an Illinois insurance broker did not also constitute the sale of “securities” under Illinois law. Quarles & Brady represented the National Association of Fixed Annuities as an amicus to highlight some of the practical consequences of attempting to regulate such annuities as both insurance and securities.


Regulatory Appeals

People of the State of Illinois v. Illinois Commerce Commission, 2019 IL App (1st) 180679-U

In this dispute between two Illinois agencies, the Illinois Attorney General challenged the Illinois Commerce Commission’s decision approving the plan of our client, Peoples Gas, to modernize the gas mains under Chicago’s streets. The Attorney General urged the court to impose a slower replacement program than the Commission had approved. The court disagreed and affirmed the Commission’s decision by pointing out the “urgency to encourage the gas utilities in Illinois to invest in updating their infrastructure.”


Trusts and Estates

Prince v. Marquette Bank, 2019 IL App (1st) 180346-U

Our clients were sued by one of their brothers who claimed that because he had been given a sole power of appointment for land held in a trust, he could sell the property without the consent of his family. Addressing unsettled issues of Illinois trust law, the Appellate Court held that a sole power of appointment for a land trust includes a fiduciary duty to the other beneficiaries of the trust. Therefore, the brother could not sell the property without their consent. The court also clarified that under Illinois law, property held in such a land trust could not be partitioned.