Appellate Practice

A Seasoned Advocate

In addition to handling tax controversies, the Firm has an appellate practice. Jim Malone, the firm’s managing member, is admitted to practice before the Supreme Court of the United States, as well as the United States Courts of Appeals for the First, Third, Fifth, Sixth, Seventh, Ninth, D.C. and Federal Circuits. He is a member of the Litigation Section of the American Bar Association, and the Third Circuit Bar Association.

Jim has extensive experience as an appellate advocate; he has argued thirteen federal appeals in five different circuits, and has been actively involved in briefing many other appeals. Jim has served as counsel of record in the Supreme Court of the United States on petitions for certiorari and on briefs in opposition. Jim is also experienced in handling appeals in the Pennsylvania courts, and he has been actively involved in briefing cases in other states as well.

Jim is available to assist on appellate cases in a variety of capacities, ranging from lead counsel directing the preparation of the brief and appendix and presenting argument to a consulting role, assisting trial counsel in framing the issues for briefs and arguments.

Jim’s appellate experience includes the following cases:

Serabian v. Amoskeag Bank Shares, Inc., 24 F.3d 357 (1st Cir. 1994) – Jim successfully argued for the reversal of a judgment dismissing a securities fraud complaint against a bank holding company. This was the first time that the dismissal of a securities class action complaint was reversed in the First Circuit.

In re Unisys Savings Plan Litigation, 74 F.3d 420 (3d Cir. 1996) – Jim successfully argued the appeal from the entry of summary judgment in an ERISA class action that focused upon the fiduciaries’ investment in debt securities issued by Executive Life Insurance Company. After trial, Jim argued on behalf of the plaintiffs-appellants, In re Unisys Sav. Plan Litig., 173 F.3d 145 (3d Cir. 1999), and served as counsel of record on their petition for certiorari.

In re Lucent Death Benefits ERISA Litigation, 541 F.3d 250 (3d Cir. 2008) – Jim argued on behalf of the plaintiffs-appellants in an action involving a death benefit that had been tied to age and service and paid from the assets of a defined benefit pension plan. A successor to the sponsor had terminated the benefit to avoid the need to make contributions to the plan’s trust. The focus of the action was on whether the benefit was properly characterized as a welfare benefit or a pension benefit.

Charles v. Pepco Holdings, Inc., No. 07-4044, 2008 WL 478128 (3d Cir. Nov. 04, 2008) – Jim represented employees who were challenging the conversion of a traditional defined benefit pension plan to a cash balance plan. The appeal was focused upon the adequacy of notice under Section 204(h) of ERISA, 29 U.S.C. § 1054(h)(1) (1996), and the relevant Treasury Regulations, Treas. Reg. § 1.411(d)-6T (1996). You can listen to the oral argument in this case:

Charles v. Pepco Holdings, Inc.     

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