Appellate and Supreme Court

Jerry Falk is a retired partner of the firm who no longer practices with Arnold & Porter LLP. He is available for consultation on particular matters as co-counsel with Arnold & Porter and also acts as an arbitrator and mediator through JAMS.

Following law school, Mr. Falk served as law clerk to Justice William O. Douglas of the Supreme Court of the United States. He then joined Howard Rice where he engaged in civil trial and appellate litigation. From 1968 to 1978, he also taught constitutional law courses at the University of California, Berkeley, School of Law. His litigation practice includes substantial cases in the fields of securities, antitrust, contracts, real property sales and financing, insurance coverage, professional liability, environmental, intellectual property and constitutional law.

Representative clients in appellate matters include Autodesk, The Irvine Company, McKesson Corporation, Genentech, Inc., Toshiba, Inc., University of California, Citicorp Real Estate, Inc., Alcatel, City and County of San Francisco, The Oakland Raiders and the State of California. According to Judicial Council statistics, civil appeals result in reversals or modifications of the judgment in only 29% of the cases. But in appeals handled by Mr. Falk on behalf of an appellant challenging the judgment, the judgment was reversed or significantly reduced in 71% of the cases. And in appeals in which Mr. Falk represented a respondent defending the judgment, the judgment was only reversed in 13% of the cases.

He has been a frequent lecturer on continuing legal education programs for C.E.B., ALI-ABA, California Judges Association, The Rutter Group, Hastings College of Advocacy, Practicing Law Institute, the Association of Business Trial Lawyers and other educational organizations on various topics including trial advocacy, appellate advocacy, constitutional law, writ practice and the law of evidence.

For more than 25 years, Mr. Falk has been listed in The Best Lawyers in America, which currently lists him in the fields of Appellate Law, Bet-the-Company Litigation, Commercial Litigation and Intellectual Property Litigation. In 2010, he was named appellate attorney of the year by California Lawyer magazine and the same year was selected as San Francisco Appellate Lawyer of the Year by Best Lawyers. Mr. Falk was selected as a "Top 100 Lawyer in California" by the Daily Journal in 2008 and 2010. He has been listed in Chambers USA's "America's Leading Lawyers for Business" as a leading practitioner of appellate law since 2007. He was recognized as a Top 100 Super Lawyer from 2004 through 2011 and was named a Top 10 Super Lawyer from 2007 through 2009. Mr. Falk was recognized by The Best of The U.S. for his commercial litigation work. He has also received the California Law Review's "Alumnus of the Year" honor; the Distinguished Jurisprudence Award from the Anti-Defamation League; The American Jewish Committee's Learned Hand Award and the Boalt Hall Citation Award. Mr. Falk is an AV-rated attorney, a peer-awarded honor given by Martindale-Hubbell.

Appellate and Supreme Court Representative Matters

• Russ Building Partnership v. City and County of San Francisco, 484 U.S. 909 (1987) (per curiam), affirming 199 Cal. App. 3d 1496 (1987) (represented City of San Francisco in defending constitutionality of development fee imposed on new office projects).
• P.G.&E. v. Public Utilities Commission, 475 U.S. 1 (1986) (First Amendment challenge to order of public utilities commission requiring utility to include consumer insert in billing envelope).
• California v. Texas, 457 U.S. 164 (1982) (same).
• Cory v. White, 457 U.S. 85 (1982) (represented California in a federal interpleader action against Howard Hughes' estate and the State of Texas to establish California's right to levy death tax on the Hughes estate).
• Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (challenge to surprise search of newspaper files).
• Faretta v. California, 422 U.S. 806 (1975) (establishing criminal defendant's right of self-representation).
• Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010) (represented Autodesk in an important first sale case concerning a copyright owner's right to retain ownership of copies of its computer software by licensing rather than selling them).
• F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010) (represented rapper Eminem's producer in a case that was the first appellate decision regarding how traditional music recording agreements apply to new methods of record distribution).
• Advertise.com, Inc. v. AOL Advertising, Inc., 616 F.3d 974 (9th Cir. 2010) 9 (an opinion that took a strong stance in favor of robust competition in the online marketplace to the benefit of consumers).
• Milenbach v. Commissioner of Internal Revenue, 318 F.3d 924 (9th Cir. 2003) (secured reversal of Tax Court judgment on tax consequences of relocation of Oakland Raiders).
• Nickel v. Bank of America, 290 F.3d 1134 (9th Cir. 2002) (secured reversal of judgment in class action involving remedy for collection of unlawful trustee's fees).
• Estate of Cyril Magnin, 184 F.3d 1074 (9th Cir. 1999) (secured reversal of judgment in estate tax case involving the taxation of a reserved life estate under 28 U.S.C. §2036).
• Estee Lauder, Inc. v. Gap, Inc., 108 F.3d 1503 (2nd Cir. 1997) (overturned injunction restraining client in trademark case).
• NLRB v. California-Pacific Medical Center, 19 F.3d 449 (9th Cir. 1994) (en banc) (represented employer-hospital in successful challenge to standard applied by trial court in issuing preliminary injunction pending NLRB resolution of unfair labor practice charge).
• Nintendo of America v. Lewis Galoob Toys, Inc., 964 F.2d 965 (9th Cir. 1992) (cutting edge copyright infringement case).
• Traweek v. City & County of San Francisco, 920 F.2d 589 (9th Cir. 1990) (holding San Francisco's condominium conversion law protected by state action exemption in antitrust suit).
• City & County of San Francisco v. United Airlines, 616 F.2d 1063 (9th Cir. 1980) (represented San Francisco in defense of electric rates charged commercial customers).
• Roby v. McKesson, Corp., 47 Cal. 4th 686 (2009) ($15 million punitive damages award in disability discrimination case reduced to $1.9 million).
• City of Hope v. Genentech, Inc., 43 Cal. 4th 375 (2008) (overturned US$320 million award of punitive damages and interest, holding that Genentech's agreement to pay patent royalties to inventor did not create a fiduciary relationship and therefore would not support award of punitive damages).
• Grafton Partners v. Superior Court, 36 Cal. 4th 944 (2005) (secured ruling that predispute agreements to waive a jury trial in any future litigation are unconstitutional).
• Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal. 4th 1037 (2003) (established that law firm client cannot recover "lost" punitive damages as compensatory damages for malpractice).
• Laurel Heights Improvement Ass'n v. Regents of Univ. of Calif., 6 Cal. 4th 1112 (1994) (represented University of California in successful defense of environmental impact report on large laboratory project).
• Neary v. Regents of University of California, 3 Cal. 4th 273 (1992) (upholding a settlement made on appeal on the condition that trial court judgment be vacated).
• Adoption of Alexander H., 44 Cal. 3d 857 (1988) (represented adoptive parents in successful defense to efforts of natural mother to withdraw consent to adoption by use of habeas corpus).
• Russ Building Partnership v. City and County of San Francisco, 44 Cal. 3d 839 (1988) (upheld same development fee against claim that it could not be applied "retroactively" to project approved before its enactment).
• Farrell v. City & County of San Francisco, 32 Cal. 3d 47 (1982) (represented San Francisco in a case defining "special tax" subject to 2/3 vote requirement under Proposition 13).
• Mandel v. Myers, 29 Cal. 3d 531 (1981) (enforceability of judgment against the State of California for attorneys' fees).
• Pacific Legal Foundation v. Brown, 29 Cal. 3d 168 (1981) (represented State Personnel Board in litigation concerning constitutionality of State Employer-Employees Relations Act).
• Olson v. Cory, 27 Cal. 3d 532 (1980) (represented the State of California in defense of the 1976 legislation concerning judicial salaries).
• California Hotel & Motel Association v. Industrial Welfare Commission, 24 Cal. 3d 200 (1979) (litigation challenging validity of minimum wage orders of the Industrial Welfare Commission).
• McComb v. Commission on Judicial Performance, 19 Cal. 3d Spec. Trib. Supp. 1 (1977) (removal of disabled Supreme justice).
• Citizens For Jobs and Energy v. Fair Political Practices Commission, 16 Cal. 3d 671 (1976) (defended FPPC in First Amendment challenge to constitutionality of expenditure limitations of Political Reform Act).
• San Francisco Unified School District v. Johnson, 3 Cal. 3d 937 (1971) (represented school district in defending school integration program and challenging state "anti-bussing" law).
• Buell-Wilson v. Ford Motor Co., 141 Cal. App. 4th 525 (2006) (secured affirmance of product liability judgment resulting in award of US$27 million in compensatory damages and US$55 million in punitive damages.
• In re Executive Life Insurance Company, 132 Cal. App. 4th 344 (1995) (represented Insurance Commissioner in successful defense of reorganization plan for insolvent insurer).
• Paterno v. State of California, 113 Cal. App. 4th 998 (2003) (secured reversal of judgment in inverse condemnation case involving massive flood damage caused by failure of levee).
• Storek & Storek v. Citicorp Real Estate, 100 Cal. App. 4th 44 (2002) (secured reversal of US$41 million lender liability judgment).
• California Medical Association v. Regents of the University of California, 79 Cal. App. 4th 542 (2000) (secured reversal of injunction against University of California relating to hospital staffing).
• Pan Asia Venture Capital Corp. v. Hearst Corp., 74 Cal. App. 4th 424 (1999) (secured reversal of judgment against Hearst for alleged predatory pricing).
• Steiny v. Citicorp Real Estate, 72 Cal. App. 4th 199 (1999) (secured reversal of US$5 million fraud judgment against construction lender and overruling of prior precedent interpreting California's stop notice law).
• Kahn v. Superior Court, 188 Cal. App. 3d 752 (1987) (represented Stanford University in successful challenge, on grounds of academic freedom and privacy, to attempt to take deposition of university professor in connection with a hiring dispute).
• Katz v. Superior Court, 73 Cal. App. 3d 952 (1977) (challenge to use of California conservatorship law for purpose of forcibly incarcerating and "deprogramming" members of Unification Church).
• Socialist Workers, etc. Committee v. Brown, 53 Cal. App. 3d 879 (1975) (represented Fair Political Practices Commission in defending First Amendment challenge to contribution disclosure provisions of Political Reform Act).