MoFo’s All Things Appeals provides comprehensive insights and in-depth analyses on the latest trends and complex issues shaping the appellate landscape across various courts.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Seth Lloyd is a partner in the Appellate and Supreme Court practice with particular experience arguing and briefing high stakes patent appeals at the Federal Circuit. Seth is a go-to appellate attorney for complex appeals and has argued many cases in federal and state appellate courts across the country. He is especially skilled in appeals at the intersection of law and technology, where he leverages his strong technical background. Clients appreciate Seth’s ability to distill complicated scientific and legal principles into clear and winning arguments. He takes that approach in the Federal Circuit, where he handles appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth’s winning oral arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is also co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a barrister in the Edward Coke Appellate Inn of Court. In 2025, Seth won the American Cancer Society Cancer Action Network’s Judicial Advocacy Initiative Award for his pro bono work in support of access to healthcare.Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford and holds a Ph.D. in electrical engineering, also from Stanford. During his graduate studies, Seth received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/251208-cpc-patent-technologies" target="_self">CPC Patent Technologies v. Apple Inc.</a> (14:38) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to patent claims to biometric security </li><li><a href="/resources/video-audio/251208-cpc-patent-technologies-v" target="_self">CPC Patent Technologies v. Apple Inc.</a> (13:42) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to patent claims to biometric security </li><li><a href="/resources/video-audio/251208-cellspin-soft-v-fitbit-llc" target="_self">Cellspin Soft v. Fitbit LLC </a>(40:48) (Fed. Cir.) Argued on behalf of multiple defendants and won affirmance of summary judgment of noninfringement for patent claims related to wireless communications </li><li><a href="/resources/video-audio/251208-cellspin-soft-vs-fitbit-llc" target="_self">Cellspin Soft v. Fitbit LLC</a> (32:28) (Fed. Cir.) Argued and won dismissal of appeal requesting recusal of district court judge</li></ul><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/251208-ams-osram-usa-v-renesas" target="_self">ams-OSRAM USA v. Renesas Electronics America </a>(00:12) (Fed. Cir.) Argued and won partial reversal, partial affirmance, and partial vacatur of district court trade secrets decision</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>

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Partner

Seth Lloyd is a partner in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing complex appeals. Seth is particularly sought after for his experience in high stakes patent appeals at the Federal Circuit, where he leverages his strong technical background and deep understanding of patent law. Clients appreciate Seth’s ability to transform complicated scientific and legal principles into clear and winning arguments.

Seth Lloyd

Aileen McGrath, a partner in Morrison Foerster’s Appellate and Supreme Court practice, leads high stakes appeals in the U.S. Supreme Court and appellate courts across the country, with a particular focus on courts in California.Aileen’s clients describe her as “one of the best writers I have ever seen,” uniquely skilled at developing “the most effective strategy” in bet-the-company cases, and “extraordinarily knowledgeable.” (Chambers USA)A broad range of sophisticated clients turn to Aileen to lead their appeals. Aileen has a robust track record, including arguing in the U.S. Supreme Court and leading many other Supreme Court matters at the merits and certiorari stages. She has also argued multiple appeals in the U.S. Court of Appeals for the Ninth Circuit and California Courts of Appeal, and she has led representations at the California Supreme Court. Aileen is recognized as a rising star in appellate litigation in California. She is ranked in the "Up and Coming" category for Litigation: Appellate in California by Chambers USA. Additionally, The Legal 500 has named her a "Next Generation Partner" in the Appellate: Supreme Courts (States and Federal) practice area.Aileen possesses deep expertise in multiple areas of law, including class actions, consumer protection cases, constitutional and civil rights issues, labor and employment matters, state and local government litigation, and state and federal administrative proceedings. Beyond her appellate engagements, she is actively involved at the trial court level, collaborating with clients as a creative problem-solver and trusted strategic advisor. Before joining Morrison Foerster, Aileen was the Co-Chief of Appellate Litigation at the San Francisco City Attorney’s Office. Previously, she served as Deputy City Attorney on the Complex and Affirmative Litigation team. Throughout her service in the Office, she acted as lead counsel for San Francisco in numerous significant matters at all levels of the California state and federal courts, including the U.S. Supreme Court and California Supreme Court.Aileen is an active member of the Bar Association of San Francisco and the Association of Business Trial Lawyers Northern California chapter. Aileen maintains a robust pro bono practice, and she has been recognized by the International Municipal Lawyers Association and the California County Counsel’s Association for her dedication to local-government public interest work. She regularly guest lectures about oral advocacy and effective appellate writing at law schools across the country, including Yale Law School, UC Berkeley School of Law, UC Law San Francisco, and American University Washington College of Law. Aileen also frequently speaks publicly about the U.S. Supreme Court and the California Supreme Court.Aileen served as a law clerk to Justice Stephen Breyer of the U.S. Supreme Court and then-Chief Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit. She also served as a chambers attorney at the California Supreme Court for Justice Mariano-Florentino Cuéllar.Aileen earned her J.D., magna cum laude, from Harvard Law School, where she was awarded the prestigious Sears Prize, recognizing the top two students in her class. She also served as president of the Harvard Law Review. She received her B.A., magna cum laude, from Columbia University.<h4>Representative Experience</h4><ul><li>Sheetz v. County of El Dorado (<a href="https://www.supremecourt.gov/oral_arguments/audio/2023/22-1074" target="_blank">audio recording</a>). Argued on behalf of California local government in a U.S. Supreme Court property-rights case with significant national implications for land-use planning.</li></ul><ul><li>Successfully opposed a U.S. Supreme Court petition for certiorari in a Fourth Amendment case involving a circuit conflict.</li></ul><ul><li>Armstrong v. Michaels Stores, Inc. (<a href="https://www.ca9.uscourts.gov/media/audio/?20221118/21-16423/" target="_blank">audio recording</a>). Argued and won a Ninth Circuit appeal in a case seeking to upend the standard for analyzing waiver of the right to move to compel arbitration.</li></ul><ul><li>Successfully defeated class certification on behalf of a leading telecommunications company, and successfully led appellate representation to defeat plaintiffs’ Rule 23(f) petition for Ninth Circuit interlocutory review.</li><li>Successfully represented American Indian tribe before the Second Circuit in a significant Indian law case challenging New York State officials’ operation of state highway across tribe’s reservation.</li></ul><ul><li>City & County of San Francisco v. Barr (<a href="https://www.ca9.uscourts.gov/media/audio/?20191202/18-17308/" target="_blank">audio recording</a>). Successfully challenged federal government’s denial of Byrne JAG funding for sanctuary cities, including briefing and arguing appeal before Ninth Circuit and opposing petition for certiorari.</li></ul><ul><li>Successfully briefed and argued appeal in landmark California water rights case challenging the operation of the Hetch Hetchy Reservoir.</li></ul><ul><li>Rivera v. Garland (<a href="https://www.ca9.uscourts.gov/media/audio/?20210301/19-71755/" target="_blank">audio recording</a>). Argued and won a Ninth Circuit immigration victory in a case seeking asylum for a mother and her young daughter who fled gang violence in El Salvador.</li></ul><ul><li>Defeated petition for en banc review in D.C. Circuit appeal challenging Department of Interior’s tribal land trust decision.</li><li>Successfully defended local government retail ordinance against a dormant Commerce Clause challenge.</li><li>Served as key drafter of the U.S. Supreme Court merits briefing in Hollingsworth v. Perry, which secured marriage equality in California.</li><li>Defeated election challenge to a San Francisco ballot initiative. </li></ul>

San Francisco City Attorney's Office

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Aileen McGrath, a partner in Morrison Foerster’s Appellate and Supreme Court practice, leads high stakes appeals in the U.S. Supreme Court and appellate courts across the country, with a particular focus on courts in California. Aileen has a robust track record, including arguing in the U.S. Supreme Court and leading many other Supreme Court matters at the merits and certiorari stages. She has argued multiple appeals in the U.S. Court of Appeals for the Ninth Circuit and California Courts of Appeal, and she regularly leads representations at the California Supreme Court. A broad range of sophisticated clients turn to Aileen to lead their appeals. They describe her as “one of the best writers I have ever seen,” uniquely skilled at developing “the most effective strategy” in bet-the-company cases, and “extraordinarily knowledgeable.”

Aileen McGrath

Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals.Brian has a nationwide appellate practice. He has argued many cases in federal and state appellate courts throughout the country, winning appeals involving commercial disputes, securities litigation and enforcement, government contracts, consumer class actions, and intellectual property. He has led appeals in the D.C., Second, Fourth, Fifth, Ninth, Eleventh, and Federal Circuits. His arguments include significant victories in class action appeals and in appeals for leading financial services companies, with multiple victories in the Ninth Circuit, where he clerked. Brian recently has gone six for seven when representing appellants, including a precedential victory in the Ninth Circuit in a licensing dispute concerning alleged patent misuse. He also argued and won a D.C. Circuit appeal against the Securities and Exchange Commission (SEC) about the retroactivity of part of the Dodd-Frank Act. As a result of Brian’s win, the SEC had to change its enforcement practices against certain securities industry professionals.Clients frequently turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters” (Chambers USA). Brian has won 14 of his last 16 appeals in that Court. His arguments before the Federal Circuit include winning appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software.Brian also plays a key role on trial teams, advising clients on both critical legal issues and appellate preservation. He recently argued and prevailed against a summary judgment invalidity motion in a case involving Chugai Pharmaceutical Co. Ltd.’s revolutionary antibody recycling technology, which ultimately led to a $775 million settlement on the eve of trial for Chugai.A former law clerk for the United States Supreme Court, Brian has authored many briefs in that Court, including on important constitutional and statutory interpretation issues. He often represents clients’ interests in amicus briefs in significant Supreme Court cases affecting the business community.Leading publications have recognized Brian for his appellate skills. The Legal 500 US recommends him for appellate litigation, and the National Law Journal named Brian a “Minority 40 Under 40.”Brian also dedicates significant time to pro bono matters. He argued and won two significant appeals—in the Second and Ninth Circuits—obtaining reversals of judgments that had denied private rights of action under the Child Welfare Act in precedential decisions. Brian also led the Morrison Foerster team who co-counseled a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime.For years, Brian chaired the ABA’s seven-person Standing Committee for Amicus Curiae Briefs. He served on the American Intellectual Property Law Association’s amicus committee and co-chaired the National Asian Pacific American Bar Association’s amicus committee. Brian served as an appellate lawyer representative for the Ninth Circuit. Brian also serves on the board of directors for the Lawyers’ Committee for Civil Rights Under Law.Before entering private practice, Brian clerked on the United States Supreme Court for Justice Anthony M. Kennedy. He also clerked for Judge Pamela Ann Rymer in the Ninth Circuit and Judge David F. Levi in the Eastern District of California.While in law school, Brian served as managing editor of Volume 51 of the Stanford Law Review and was elected to the Order of the Coif.<h4>Representative Oral Arguments</h4><ul><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1260_02102023.mp3" target="_blank">SNIPR Technologies Ltd. v. Rockefeller University</a> (Fed. Cir.). Prevailed in a precedential decision reversing the Patent Office's interpretation of the America Invents Act (AIA) that subjected patents post-dating the Act to pre-AIA interference proceedings. The decision revived five of SNIPR’s patents related to CRISPR technology</li><li><a href="/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_self">Renesas Electronics Corporation v. Broadcom Corporation</a> (12:40) (Fed. Cir.). Successfully argued and briefed multiple appeals from an International Trade Commission (ITC) decision and several Patent Trial and Appeal Board decisions related to an ITC investigation initiated by Broadcom involving systems-on-chip powering automobile infotainment systems</li><li><a href="/resources/video-audio/210706-cr-bard-v-medline-industries" target="_self">C.R. Bard Inc. v. Medline Industries, Inc.</a> (0:45) (Fed. Cir.). Won vacatur of three Patent Trial and Appeal Board decisions on obviousness</li><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21-1745_03102022.mp3" target="_blank">Advanced Voice Recognition Systems, Inc. v. Apple Inc.</a> (14:30) (Fed. Cir.). Secured a complete victory in appeal from Patent Trial and Appeal Board that all challenged patent claims were unpatentable</li><li><a href="/resources/video-audio/200515-william-paulus-v-ocera-therapeutics-inc" target="_self">William Paulus v. Ocera Therapeutics, Inc.</a> (13:25) (9th Cir.). Successfully argued and briefed appeal in a putative shareholder class action involving a tender offer</li><li><a href="/resources/video-audio/200410-kurtz-v-costco" target="_self">Kurtz v. Costco Wholesale Corporation </a>(9:23) (2d Cir.). Successfully petitioned for review of a class certification decision, then argued and obtained a remand for the district court to reconsider its certification decision, and an eventual reversal on an injunctive class certification decision</li><li><a href="/resources/video-audio/161117-gregory-bartko-v-sec" target="_self">Gregory Bartko v. SEC</a> (0:53) (D.C. Cir.). Successfully argued and obtained precedential ruling that the Securities and Exchange Commission could not retroactively apply Dodd-Frank’s industry-wide sanctions on securities professionals for certain securities violations</li></ul>

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Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For nearly 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. He has argued numerous cases in federal and state appellate courts throughout the country, winning appeals involving commercial disputes, securities litigation and enforcement, government contracts, consumer class actions, and intellectual property. Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued more than 20 times in that Court, winning appeals from both district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Brian excels at applying significant legal principles to complex technologies in a way that distills them for the Court.

Brian Matsui

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Party Presentation At The Supreme Court:  Two Recent Viewpoints

Royal Canin: One Year Later

Recently in the California Supreme Court: Marijuana Opinion Reinforces The Importance And Intricacies Of Relying On “Purpose” In California Statutory Interpretation

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A basic rule in the adversarial system is party presentation: the parties “frame the issues for decision,” while the court serves as a “neutral arbiter” of the issues those parties present. United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). Chief Justice Roberts has famously <a href="https://www.cnn.com/2005/POLITICS/09/12/roberts.statement/" target="_blank">described </a>this principle as courts limiting themselves to “call[ing] balls and strikes,” rather than going to bat themselves. (And Justice Kagan has echoed the Chief’s phrase in the Court’s own opinions. See Lomax v. Ortiz-Marquez, 590 U.S. 595, 599 (2020).) On the surface, the party-presentation principle seems as straightforward a rule as it gets. And it’s often treated as a discretionary rule: for nearly every example of parties failing to present an issue (commonly described as waiver or forfeiture), there’s an example of a court deciding to reach an issue anyway. But two recent Supreme Court rulings raise some unexpected nuances and questions as to how the Court is interpreting and applying that rule—as applied to both lower courts and to the Court itself. In November 2025, the Court issued a per curiam summary disposition in a habeas case, Clark v. Sweeney. There, the Court held that the Fourth Circuit violated party presentation by granting habeas relief on a theory the petitioner never advanced. Mr. Sweeney had raised a single claim: that his trial counsel was constitutionally ineffective for failing to voir dire the entire jury to ensure that one juror’s misconduct had not tainted any other juror’s consideration of the case. The state court and federal district court both rejected that claim. On appeal, the Fourth Circuit reversed—but on a different theory. The Fourth Circuit ruled that “Sweeney’s trial was marred by a ‘combination of extraordinary failures from juror to judge to attorney’ that deprived Sweeney of his right to be confronted with the witnesses against him and his right to trial by an impartial jury.” It granted Sweeney a new trial on that theory. Judge Quattlebaum dissented, arguing the majority had “flout[ed]” party-presentation principles.The per curiam Court (with no recorded dissenters) agreed with Judge Quattlebaum, holding that “[t]he Fourth Circuit’s radical transformation of Sweeney’s simple ineffective-assistance claim departed so drastically from the principle of party presentation as to constitute an abuse of discretion.” Although the Court’s ruling contained virtually no other reasoning, it invoked notice and due process concerns, observing in passing that the state never had a chance to address the new theory the Fourth Circuit had ruled on.One month later, some Justices on the Court again grappled with the party-presentation principle in Trump v. Illinois. That case arose from President Trump’s attempt to federalize and deploy state National Guard troops in Chicago in the midst of immigration enforcement raids. Trump relied on 10 U.S.C. §12406(3), which empowers the President to federalize members of the National Guard if he is “unable with the regular forces to execute the laws of the United States.” The district court entered a temporary restraining order barring that federalization and deployment, and the government applied for a stay of that TRO from the Supreme Court. After primary briefing, the Court directed the parties to file supplemental briefing on an issue the parties had not addressed: the meaning of the term “regular forces” in § 12406(3). The Court then issued an order (with no attributed author) denying the stay application based on its interpretation of the term “regular forces.”Justice Alito, joined by Justice Thomas, dissented. And one of the first issues he raised was party presentation. Citing Clark v. Sweeney, he argued that the Court had “unnecessarily and unwisely departed from standard practice” of deciding only the questions the parties choose to present, and had instead invited and accepted an “eleventh-hour argument” that respondents had “waived or forfeited … three times over” in the lower courts. According to Justice Alito, if the Court had doubts as to the parties’ agreed-upon interpretation of the term “regular forces,” it should have simply assumed the correctness of that interpretation for the sake of argument, as the Court has done in the past. And in Justice Alito’s view, the Court’s party-presentation error was compounded by the Court’s opining on “a host of important questions without adequate briefing, consideration, or explanation.”Despite their brevity, these two recent invocations of party presentation <a href="https://www.scotusblog.com/2026/01/januarys-criminal-law-arguments-and-is-party-presentation-morphing-into-a-court-controlling-rule/" target="_blank">have not gone unnoticed</a>. The outcomes of these two cases are also interesting considering that both cases departed from the usual format of the Court’s merits docket: Clark was a summary disposition in which the Court declined to ask for full briefing or argument, and Trump was an emergency stay application that also lacked full merits briefing or argument. Do abbreviated proceedings like Clark and Trump make strict adherence to party presentation more important or less important? On the one hand, the more limited the parties’ briefing, the less guidance the Court has when wading out beyond the arguments made. On the other hand, when parties have less time and opportunity to brief and argue, that increases the risk they may miss key issues, and might correspondingly increase the Court’s responsibility to cover ground the parties did not—particularly for urgent, hot-button issues. Given the increasing frequency with which the Supreme Court is addressing issues in similarly abbreviated fashions, we may start to get more guidance with how the Supreme Court expects courts to grapple with those tradeoffs.

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Associate

Alexandra Avvocato is a member of Morrison Foerster’s Appellate and Supreme Court practice. Alexandra’s practice focuses on appeals and critical motions in federal and state courts across the country.

Alexandra Avvocato

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Party Presentation At The Supreme Court:  Two Recent Viewpoints

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Two recent Supreme Court rulings raise some unexpected nuances and questions as to how the Court is interpreting and applying the party presentation principle—as applied to both lower courts and to the Court itself.

When lawyers think of “forum shopping,” they typically envision the strategic selection of a favorable state or circuit. Last Term, the Supreme Court addressed a more unusual form of the practice. Although plaintiffs may initially select a state forum, defendants may remove cases that present certain federal issues to federal court. But what if the plaintiff then amends their complaint to delete the federal issue that justified removal? Do these post-removal amendments erase federal jurisdiction and compel remand to state court, putting the plaintiff back in control of the forum? Or does the complaint at the time of removal control?For years, those questions were largely settled. Circuits had long agreed that federal question jurisdiction was determined by the complaint at the time of removal. Plaintiffs could not eliminate removal jurisdiction simply by amending their complaint to delete federal claims or issues. The Supreme Court appeared to have taken the same view in a 2007 footnote, explaining such tactics would “raise forum-manipulation concerns.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 474 n.6 (2007).That all changed last January. In Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025), a consumer brought federal and state law claims against a dog food manufacturer in Missouri state court. After the defendant removed the case, the plaintiff amended her complaint to eliminate the federal claims and moved to remand. She argued that her amendments extinguished both federal question jurisdiction and any supplemental jurisdiction over the state law claims. In an unexpected move, the Eighth Circuit agreed, breaking with the other circuits and creating a lopsided split that the Supreme Court agreed to review.The Court unanimously affirmed, holding that plaintiffs have the power to compel remand by excising federal claims from their complaints. As Justice Kagan’s opinion explained, an amended complaint “supersedes” the old one. When a plaintiff deletes certain allegations or claims from their complaint, those issues are no longer part of the case. No more federal claims, no more federal jurisdiction.As the Court acknowledged, this new rule allows plaintiffs to reassert control over the forum in certain cases. Several circuits have confronted these scenarios in the year since Royal Canin was decided, teasing out the fact patterns that plaintiffs may be able to exploit and that defendants should be ready for.First, the Ninth Circuit recently held that plaintiffs could defeat the removal of certain class actions by striking the class allegations from their complaints. The Class Action Fairness Act supplies federal jurisdiction over state-law class actions that are large enough to meet several statutory requirements. In Faulk v. JELD-WEN, Inc., 159 F.4th 618 (9th Cir. 2025), the defendants removed a class action under CAFA, which prompted the plaintiffs to amend their complaint to “excise” the class allegations. In the past, these post-removal amendments would not have compelled remand, as the Ninth Circuit (and several others) had held. See, e.g., Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274 (9th Cir. 2017); In Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 98 (2d Cir. 2015); In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379 (7th Cir. 2010). But under Royal Canin, the amended complaint controlled. Because it no longer brought a class action, the case fell outside the scope of CAFA—and eliminated federal jurisdiction.The Fourth Circuit similarly concluded that plaintiffs could compel remand by limiting the scope of their state-law claims to avoid the reach of federal preclusion statutes. One of these statutes is the Securities Litigation Uniform Standard Act, which prohibits plaintiffs from bringing certain state-law class actions involving nationally traded securities. It also permits defendants who face such claims to remove the case to federal court, which then decides whether the claims are barred by SLUSA. In Black v. Mantei & Associates, Ltd., 145 F.4th 528 (4th Cir. 2025), the defendant did just that, removing a suit that brought securities misrepresentation claims under South Carolina law. The plaintiff amended his complaint to disclaim any allegations or damages in connection with a covered security. Once again, some circuits would previously have found such amendments ineffective to alter federal jurisdiction. See Behlen v. Merrill Lynch, 311 F.3d 1087 (11th Cir. 2002). But as the Fourth Circuit recognized, Royal Canin compelled the opposite result. The amended complaint controlled for purposes of removal jurisdiction, and it no longer fell within the scope of SLUSA.More scenarios like these are sure to reach the courts of appeals in the coming years. One question that may soon arise relates to fraudulent joinder. This doctrine allows a defendant to remove a case under diversity jurisdiction even if complete diversity is lacking, so long as the defendant can show that the non-diverse parties were added as a “sham.” Courts typically find this test met when the plaintiff has “no possibility” of imposing liability on the disputed party. But in order to assess that “no possibility” standard, courts have traditionally looked to the complaint at “the time the petition for removal was filed.” Hogan v. Raymond Corp., 536 F. App’x 207, 210 (3d Cir. 2013); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Appellate courts may soon have to confront how that rule squares with Royal Canin’s pronouncement that the amended complaint “supersedes” the removed one for jurisdictional purposes.Another lurking issue relates to a notable footnote from Royal Canin. What if a case is removed under diversity jurisdiction, but the plaintiff then amends their complaint to reduce the amount-in-controversy below the statutory threshold of $75,000? One might think that such amendments would also destroy diversity jurisdiction, since the amended complaint’s lower value would “supersede” the original one. But as the Court explained, certain jurisdictional facts, such as a party’s citizenship, are treated as immutable; they are fixed at the time a suit is commenced. The Court recognized that amount-in-controversy fit that mold as well. Because the value of a suit concerns a “fact on the ground,” post-removal amendments to it cannot eliminate diversity jurisdiction. Time will tell whether this footnote gains any traction in future disputes over removal jurisdiction. Defendants may well find other “facts on the ground” that are similarly fixed at the time of filing and immune to post-removal amendments. But whatever the implications of that footnote, appellate courts and litigants are already feeling the impact of Royal Canin, with post-removal amendments already proving their ability to compel remand in a variety of scenarios.

Karl J. Mihm

Karl Mihm

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Royal Canin: One Year Later

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When lawyers think of “forum shopping,” they typically envision the strategic selection of a favorable state or circuit. Last Term, the Supreme Court addressed a more unusual form of the practice.

On Friday, the Supreme Court granted certiorari in Hikma Pharmaceuticals v. Amarin Pharma, ending an almost three-year lull in patent cases at the Court. The case presents two related questions, one framed specifically in the context of generic drugs and the other framed more broadly about induced patent infringement in general. In Hikma’s words, the questions presented are: <blockquote>1. When a generic drug label fully carves out a patented use, are allegations that the generic drugmaker calls its product a “generic version” and cites public information about the branded drug (e.g., sales) enough to plead induced infringement of the patented use? </blockquote><blockquote>2. Does a complaint state a claim for induced infringement of a patented method if it does not allege any instruction or other statement by the defendant that encourages, or even mentions, the patented use?</blockquote><h4>Hikma’s Carveout</h4>Hikma v. Amarin is a pharmaceutical patent case involving a so-called “skinny label.” The case concerns a drug with multiple approved medical uses, or “indications.” When the FDA approves a drug, it approves the drug only for specified indications that appear on the product’s labeling. Brand‑name drug companies may later obtain approval and patent protection for additional indications, expanding both their markets and their patent coverage.Amarin markets a branded drug approved for two indications, but the patents in this case cover only one of them. Hikma sought FDA approval to market a generic version of Amarin’s drug for only the non‑patented indication, thus “carving out” the patented use to create a “skinny label.” That move gave Hikma some level of protection from infringement claims based on the Hatch‑Waxman Act’s specialized provisions, which generally tie infringement to the contents of the generic’s FDA submission.<h4>Amarin’s Allegations</h4>After Hikma launched its generic, Amarin sued for induced infringement based on statements Hikma allegedly made outside its FDA submission. Even though Hikma’s generic was approved for only one indication, pharmacists could dispense it for the patented indication as well, and they often do so automatically as required under some states’ laws. Amarin alleged Hikma encouraged such patented use in various ways, including:<ul><li>A press release that described Hikma’s product as the “generic version” of Amarin’s drug without specifying that Hikma’s product was approved for fewer indications than Amarin’s;</li><li>A press release that gave information about Amarin’s total sales for its drug, not sales tied to certain indications; and</li><li>Website materials that noted therapeutic equivalence to Amarin’s product for a “therapeutic category” that was broader than Hikma’s approved indication.</li></ul>The Federal Circuit deemed these allegations sufficient to state a claim for induced infringement.<h4>The Parties’ Cert.-Stage Positions</h4>Hikma’s petition for certiorari argued that the Federal Circuit’s decision conflicts with Supreme Court precedent requiring active encouragement of infringement. In Hikma’s view, statements that never mention the patented indication—but instead merely describe the product in general terms—cannot plausibly induce infringement. Hikma warns that the decision threatens to chill lawful generic entry by making it risky to market a generic drug whenever any indication remains patented, even if the generic has properly carved that use out of its labeling.  The Solicitor General also filed a brief at the cert. stage, generally siding with Hikma.Amarin responded that Hikma’s marketing went beyond passive conduct and affirmatively encouraged both patented and unpatented uses. According to Amarin, the Federal Circuit simply applied settled inducement law to detailed factual allegations, and generic manufacturers remain free to avoid liability through more precise marketing that clearly limits promotion to non‑patented indications.<h4>Pharma-Specific Resolution or Broader Induced Infringement Guidance?</h4>The case squarely implicates the reach of induced infringement claims by brand-name drug makers against generics based on statements outside the approved labeling. Those extra-label claims come up in the skinny-label context. That reach alone is modest, but far from trivial—one study found two dozen drugs whose first available generics used skinny labels when they came to market between 2015 and 2019. At the same time, the case brings more general induced infringement questions before the Court, at least in terms of what allegations may suffice in a complaint. The case asks how specific a statement must be to amount to active encouragement of infringement and whether inducement requires allegations (and ultimately proof) that direct infringers would actually rely on the defendant’s statements. Those issues matter to patent litigation across industries. The Court could tailor its decision to skinny-label disputes, or it could use the case to develop induced infringement standards more generally. The Court has taken up multiple cases on secondary liability in the past few years, signaling it may be broadly interested in inducement.<h4>What Happens Next</h4>With certiorari granted, the case now moves into merits briefing. Merits briefing, from both the parties and any amici, is expected to finish in time for the case to be argued in the current term, likely in April 2026. The Supreme Court will likely issue its decision on the merits before the Court’s summer recess, which begins in early July 2026.

Supreme Court Takes Up Hikma v. Amarin

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Rebecca Weires is an associate in Morrison Foerster’s Intellectual Property Litigation Group. 

Rebecca Weires Setrakian

Rebecca Setrakian

Seth Lloyd is a partner in the Appellate and Supreme Court practice with particular experience arguing and briefing high stakes patent appeals at the Federal Circuit.

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Supreme Court Takes Up Hikma v. Amarin

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Capping off two months of legal drama, the Supreme Court has stayed the ruling of U.S. District Judge Matthew J. Maddox, which ordered the immediate reinstatement of the three U.S. Consumer Product Safety Commission (CPSC) commissioners whom President Trump fired in May. This means that the three fired commissioners will not retake their offices while the issue makes its way through the appellate process. This decision marks the culmination of a turbulent period surrounding the commissioners’ removal and the ongoing appeals process.<a href="https://www.mofo.com/resources/insights/250731-supreme-court-lets-cpsc-firings-stand-for-now" target="_self">Read our client alert</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

Matt is an associate in the Litigation Department in MoFo’s San Diego office. Matt’s practice focuses on the product lifecycle, from early product development to litigation to end-of-life advisement. He counsels clients through complex consumer product safety regulatory landscapes and product recalls.











Matt Robinson

Rachel Kaiser is an associate in the Litigation Department of Morrison Foerster’s San Diego office.

Rachel A. Kaiser

Rachel Kaiser

Supreme Court Lets CPSC Firings Stand—For Now

Capping off two months of legal drama, the Supreme Court has stayed the ruling of U.S. District Judge Matthew J. Maddox, which ordered the immediate reinstatement of the three U.S. Consumer Product Safety Commission (CPSC) commissioners whom President Trump fired in May.

Supreme Court Lets CPSC Firings Stand—For Now

For nearly 40 years, when a court found that a statute was ambiguous, the court deferred to the reasonable interpretation of the federal agency administering the statute. This principle—known as Chevron deference, after the 1984 Supreme Court case Chevron U.S.A. v. Natural Resources Defense Council—had led courts, Congress, and regulated entities to rely on agency interpretations of ambiguous statutes in developing and implementing complex regulatory programs. Under Chevron, courts had upheld agency rulemaking in a wide range of public policy spheres, including healthcare, financial services, workplace safety, and the environment. On June 28, 2024, the U.S. Supreme Court overruled Chevron and held that courts “may not defer to agency interpretation of the law simply because a statute is ambiguous.” Although some of the consequences of the ruling may be near-term, and others might not be felt immediately, the decision may impact thousands of administrative programs and will inject uncertainty into litigation challenging agency regulations.<a href="https://www.mofo.com/resources/insights/240703-supreme-court-strikes-down-chevron" target="_self">Read our client alert</a>.

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Lead of Financial Services Group

Jeremy Mandell is the lead of our Financial Services Group. His practice focuses on financial services regulation, with particular attention to payment and emerging payment issues.

Jeremy R. Mandell

Jeremy Mandell

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Natalie Fleming Nolen is the Managing Partner of the Washington, D.C. office and a partner in the Litigation Department.

Natalie A. Fleming Nolen

Natalie’s practice focuses on complex civil litigation with an emphasis on antitrust litigation, commercial litigation, and financial services litigation. Recent representative matters include the defense of a financial institution in a large multidistrict antitrust litigation; defense of a company against allegations of deceptive marketing; and representing a large company that was being investigated by regulatory authorities.What do you like best about your work? I love the challenge and creativity of litigation, and crafting legal arguments and narratives to explain the facts. My favorite part of practicing law is oral arguments and trial. I am privileged to be able to work with great clients and wonderful colleagues and to work on cutting-edge legal issues.What do you enjoy doing in your free time? I love to read, and I enjoy reading to my two young daughters who share my love of reading and learning new words.What individual most inspired you, and why? My grandmothers, on both sides of the family. They were both intelligent, strong women who loved life and were deeply passionate about their families and the world around them. They had high standards and expectations and at the same time were always supportive of their children and grandchildren.

Natalie Fleming Nolen

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Colbie Holderness

Supreme Court Strikes Down Chevron Deference, Changing the Landscape of Agency Rulemaking