Appellate and Policy Advocacy

DiCello Levitt has appellate attorneys ready to assist clients across all practice areas in state and federal courts nationwide. Attorneys at the firm have repeatedly demonstrated success at the appellate level, including several high-profile appeals that created new law and are frequently cited as precedent. 

• Adam Levitt argued the first Internet privacy appeal, clarifying the law regarding “implied consent” to intercept internet communications. 
  In re: Pharmatrak, Inc. Privacy Litigation, 329 F.3d 9 (1st Cir. 2003).

• Adam Levitt set precedent in a class action appeal in the Ninth Circuit that clarified its “ascertainability” standard, when the court rejected the defendant’s argument that federal procedural rules require an “administratively feasible” way to ascertain absent class members.
  Briseño v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).

• David Straite set precedent in the Ninth Circuit, securing rulings that: (1) plaintiffs’ invasion of privacy allegations constituted concrete and particularized injuries under Article III; and (2) improper collection of user data can constitute an economic injury under state law that requires disgorgement of ill-gotten gains. The Supreme Court denied certiorari in December 2020, and the parties reached a $90 million settlement, subject to court approval. One commentator called the case a “watershed,” and a note in the Berkeley Technology Law Journal asked if the case foretells the “future” of data privacy litigation.
  In re: Facebook Internet Tracking Litigation, 959 F.3d 589 (9th Cir. 2020).

• Amy Keller preserved her landmark victory in district court, when the Eleventh Circuit rejected objectors’ arguments regarding attorneys’ fees in megafund cases and affirmed the district court’s administrative requirements imposed on “serial objectors.” 
  In re: Equifax Inc. Customer Data Security Breach Litigation, No. 20-10249 (11th Cir. 2021) cert. denied sub nom. Huang v. Spector, 142 S. Ct. 431 (2021), and cert. denied sub nom. Watkins, et al. v. Spector, et al., No. 21-638, 2022 WL 89334 (U.S. Jan. 10, 2022).

• John Tangren led an appeal that reversed the district court’s denial of class certification and has been cited in more than 400 subsequent cases for its guidance regarding class certification.
  Messner v. Northshore University HealthSystem, 669 F.3d 802 (7th Cir. 2012).

• John Tangren successfully led an appeal, which was decided on the briefs, in an opinion written by Judge Posner that clarified pleading standards in antitrust and other cases.
  In re Text Messaging Antitrust Litigation, 630 F.3d 622 (7th Cir. 2010).

• Justin Hawal led the appeal in a groundbreaking civil rights case involving shocking police misconduct and corruption, resulting in Ohio’s Eighth District Court of Appeals upholding the victim’s $50 million jury award.
  Black v. Hicks, 2020-Ohio-3976, 157 N.E.3d 193 (Ohio Ct. App. 2020) cert. denied City of East Cleveland, Ohio v. Black, No. 20-1667 (U.S. Nov. 22, 2021).

• Justin Hawal led an appeal in which Ohio’s Eighth District Court of Appeals upheld an $8.7 million jury award for two clients who were catastrophically injured by the reckless operation of a police vehicle.
  Hunt v. City of East Cleveland, 2019-Ohio-1115, 128 N.E.3d 265 (Ohio Ct. App. 2020) cert. denied City of East Cleveland, Ohio v. Hunt, 140 S. Ct. 576 (2019).

The firm also provides amicus curiae (“friend of the court”) assistance at the appellate and Supreme Court levels. 

• Adam Levitt and Amy Keller represented amicus curia Electronic Privacy Information Center (“EPIC”) in the Illinois Supreme Court regarding the Illinois Biometric Information Privacy Act.
  Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (2019).

• Amy Keller and Justin Hawal represented amicus curia Public Justice in the California Supreme Court regarding that state’s prohibition on recording calls without consent and whether it applies to parties to the call, and not just third-party eavesdroppers.
  Smith v. LoanMe, Inc., 483 P.3d 869 (Cal. 2021).