Capital Appellate Advocacy

For more than 45 years, Capital Appellate Advocacy founder Larry Ebner has represented and advised a multitude of businesses and industries in complex civil litigation, primarily in cases involving the federal government or federal law. He is a hands-on attorney whose steadfast mission is to deliver high-quality written and oral advocacy, and achieve justice, for his clients.

Larry's nationwide litigation activities include proceedings before the Supreme Court of the United States, federal courts of appeals and district courts, state appellate courts, federal and state government agencies, arbitration panels, and other  dispute resolution forums.

As an independent professional, Larry personally strategizes, researches, and drafts many types of advocacy documents. These include, for example, Supreme Court certiorari petitions and oppositions, merits briefs, and amicus curiae briefs; U.S. Court of Appeals merits briefs, amicus curiae briefs, and motions for interlocutory appeal and stay-pending-appeal; U.S. District Court motions to dismiss and for summary judgment; and state supreme court petitions for review, merits briefs, and amicus curiae briefs.

Since September 2020 Larry also has served as Senior Vice President and General Counsel of the Atlantic Legal Foundation, a national, nonprofit, public interest law firm which advocates for individual liberty, free enterprise, property rights, limited government, sound science in judicial and regulatory proceedings, and school choice. Larry is responsible for conducting the Foundation's renowned amicus curiae program.

Appellate Litigation Services

Capital Appellate Advocacy founder Larry Ebner offers clients throughout the United States a full range of appellate litigation services in the Supreme Court, U.S. Courts of Appeals, and state appellate courts. These services include —

Supreme Court

» Assessing the “certworthiness” of a case for possible appeal to the Supreme Court

» Strategizing & framing issues for Supreme Court review

» Drafting certiorari petitions

» Drafting briefs in opposition to certiorari petitions

» Drafting merits-stage briefs for petitioners or respondents

» Soliciting & coordinating petition-stage & merits-stage amicus curiae (“friend of the court”) support

» Drafting petition-stage & merits-stage amicus curiae briefs

» Drafting applications for stays

» Representing parties at meetings with the Office of the Solicitor General when the Court has issued a “Call for the Views of the Solicitor General (“CVSG”) order

» Organizing and participating in moot courts

» Presenting oral arguments before the Court

» Analyzing Supreme Court opinions

U.S. Courts of Appeals

» Assessing a potential appeal’s likelihood of success

» Strategizing & framing issues for appeal or cross-appeal

» Preparing case docketing materials

» Drafting petitions for permission to appeal interlocutory orders

» Drafting motions for stay pending appeal

» Drafting petitions for review or enforcement of federal agency orders

» Drafting or opposing motions to intervene

» Drafting petitions for a writ of mandamus and answers to mandamus petitions

» Drafting or opposing motions to dismiss or for summary affirmance

» Drafting briefs supporting or opposing a district court’s grant or denial of preliminary injunctions

» Drafting merits briefs for appellants/petitioner or appellees/respondents

» Preparing appendix materials

» Drafting Rule 28(j) letters

» Soliciting & coordinating amicus curiae support

» Drafting amicus curiae briefs

» Organizing & participating in moot courts

» Presenting oral argument

» Drafting petitions for panel rehearing or rehearing en banc

» Analyzing court of appeals opinions

Federal District Courts (pre-appeal services in coordination with trial counsel)

» Drafting notices of removal from state court

» Opposing motions to remand to state court

» Framing legal issues for potential appeal

» Drafting, or opposing, motions to dismiss, for judgment on the pleadings, for summary judgment, or for judgment as a matter of law

» Making & preserving the evidentiary record for potential appeal

» Drafting motions for interlocutory appeal under 28 U.S.C § 1292(b), Fed. R. Civ. P. 23(f), or the collateral order doctrine

» Drafting notices of appeal

State Appellate Courts (in coordination with trial counsel)

» Assessing & framing potential grounds for appeal

» Drafting or opposing petitions for review

» Drafting merits briefs

» Soliciting and coordinating petition-stage & merits-stage amicus curiae support

» Drafting amicus briefs

» Organizing & participating in moot courts

» Presenting oral argument

» Analyzing state appellate courts’ opinions

Featured Appellate Litigation Articles (click to read)

Law360 — Coping With a Pandemic: Appellate Specialist Larry Ebner

Flat-Fee Legal Billing Can Liberate Attorneys

Redefining the “Supreme Court Bar”

Supreme Court Justices Continue To Debate When To Overturn “Bad” Precedent

The Fuss Over “Stare Decisis”

Amicus Curiae (“Friend of the Court”) Briefs

Capital Appellate Advocacy founder Larry Ebner has almost half a century of experience authoring amicus curiae briefs that give national trade associations, professional organizations, pro-business legal foundations, and individual companies a voice in the Supreme Court, federal courts of appeals, and state appellate courts. Larry has written and spoken extensively on the strategic use and preparation of amicus briefs. He serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation, where he conducts that pubic interest law firm’s Supreme Court amicus program, and as Vice Chair of the Center for Law and Public Policy and Immediate Past Chair of the Amicus Committee for DRI–The Voice of the Defense Bar, whose 16,000 members represent businesses and industries in a broad range of litigation.

Examples (click to read):

»  John K. MacIver Inst. for Pub. Pol'y v. Evers, No. 21-388 (petition stage) [First Amendment test for selective exclusion of the press from governmental press briefings]

» Pilliod v. Monsanto Co., No. S270957 (Cal. Sup. Ct.) (petition stage) [FIFRA preemption of Roundup (glyphosate) failure-to-warn claims]

» Johnson & Johnson v. Mississippi, ex rel. Fitch, No. 21-348 (petition stage) [FDCA preemption of talcum powder-related consumer protection suit brought by state attorney general]

» AMN Services v. Clarke, No. 21-296 (petition stage) [judicial deference to unauthoritative Department of Labor handbook in FLSA overtime case]

» Monsanto Co. v. Hardeman, No. 21-241 (petition stage) [FIFRA preemption of failure-to-warn suit where EPA has determined that the warning at issue is scientifically unwarranted]

»  Axon Enterprise, Inc. v. FTC, No 21-86 (petition stage) [district court jurisdiction to consider structural constitutional claims while an FTC administrative enforcement proceeding is underway]

»  Johnson & Johnson v. Ingham, No. 20-1223 (petition stage) (junk science’s detrimental effects on juries and due process in talc product liability litigation)

» Axon Enterprise, Inc. v. FTC, No. 20-15662 (9th Cir.) (supporting pet. for reh'g en banc) [district court jurisdiction to consider structural constitutional claims while an FTC administrative enforcement proceeding is underway]

» Hamilton v. Speight, No. 20-1123 (petition stage) [relationship between state-law right of publicity and First Amendment freedom on expression in context of video games]

» Preserve Responsible Shoreline Management v. City of Bainbridge Island, No. 20-787 (petition stage) [due process right to present scientific testimony and other evidence in support of a constitutional challenge to a land-use regulation]

» BP v. Mayor & City Council of Baltimore, No. 19-1189 (merits stage) [removal of climate change tort suits against fossil fuel energy companies from state to federal courts]

» IQVIA, Inc. v. Mussat, No. 20-510 (petition stage) [personal jurisdiction principles governing federal class actions that purport to be national in scope]

» Gibson v. Securities and Exchange Commission, No. 20-276 (petition stage) [district court jurisdiction to consider structural constitutional claims while an SEC administrative enforcement proceeding is underway]

» CACI Premier Technology, Inc. v. Al Shimari, No. 19-648 (petition stage) [applicability of collateral order doctrine where district court denies federal contractor's immunity-from-suit claim]

» Winston-Salem Industries for the Blind v. PDS Consultants, Inc., No. 19-329 (petition stage) [federal procurement-related issue involving AbilityOne Program for individuals who are blind or severely disabled]

»  Home Depot U.S.A., Inc. v. Jackson, No. 17-1471 (merits stage) [removal of third-party and counterclaim class-action claims under CAFA, 28 U.S.C. § 1453(b)]

»  Home Depot U.S.A., Inc. v. Jackson, No. 17-1471 (petition stage) [removal of third-party and  counterclaim class-action claims under CAFA, 28 U.S.C. § 1453(b)]

»  Association des Eleveurs de Canards et d'Oies du Quebec v. Becerra, No 17-1258 [federal preemption of California statute banning sale of foie gras]

»  Medical Device Business Services, Inc. v. United States ex rel. Nargol, No. 17-1108 [application of Fed. R. Civ. P. 9(b) to False Claims Act qui tam complaints]

»  In re KBR, Inc., Burn Pit Litigation, No. 17-1960 (4th Cir.) [application of political question doctrine to damages suits against "battlefield contractors"]

» Ferrellgas Partners v. Morgan-Larson, No. 17-441 [continuing-violation exception to 4-year antitrust statute of limitations]

» Supreme Court of New Mexico v. United States, No. 16-1323 [federal prosecutors’ compliance with state-imposed professional conduct rules governing issuance of grand jury subpoenas to attorneys]

»  Schoenefeld v. Schneiderman, No. 16-780 [New York statute imposing in-state physical office requirement against non-resident bar members]

»  Bristol-Myers Squibb v. Superior Court, No. 16-466 [California state-court exercise of specific jurisdiction over out-of-state plaintiffs’ product liability claims against out-of-state corporate defendants]

»  FCA U.S. LLC v. The Center for Auto Safety, No. 15-1211 [federal standard for unsealing of discovery documents containing confidential business information]

»  State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, No. 15-513 [sanction for  violation of False Claims Act qui tam suit mandatory seal requirement]

»  AT&T v. United States ex rel. Heath, No. 15-363 [judicial enforcement of Fed. R. Civ. P. 9(b) fraud-pleading requirements in False Claims Act qui tam suits]

»  The Dow Chemical Co. v. Industrial Polymers, Inc., No. 14-1091 [class-certification principles governing predominance & commonality]

»  Campbell-Ewald Co. v. Gomez, No. 14-857 [class-action mootness & derivative sovereign immunity]

»  Carpenter Co. v. Ace Foam, Inc., No. 14-577 [Supreme Court jurisdiction to review class-certification decisions where a federal court of appeals has denied interlocutory review]

»  CTS Corp. v. Waldburger, No. 13-339 [viability of state statutes of repose governing CERCLA hazardous substance-related personal injury & property damage suits]

Featured Amicus Brief Articles (click to read)

Representing Amici Curiae In High-Profile Appeals

Law360 Op-Ed: Appellate Courts Should Welcome Well-Crafted Amicus Briefs

Five-Minute Guide To Trade Association Amicus Briefs

“Friendly Guidance” From the Supreme Court Clerk

Learning the High Art of Amicus Brief Writing

Making Strategic Use of Amicus Briefs

The United States As Amicus Curiae: Making Uncle Sam Your New Best Friend

Clients Represented

Capital Appellate Advocacy founder Larry Ebner represents and advises corporate and non-profit clients that span a broad range of industries.  His clients include, for example —

» National trade associations, professional organizations, and pro-business legal foundations

» Defense-industry contractors

» Chemical manufacturers

» Producers & users of agricultural, antimicrobial, structural, lawn care, and wood preservative pesticides; manufacturers of pesticidal devices

Featured Articles — Government Contractors (click to read)

Reining In the Qui Tam Bar

In-House Counsel “Multi-Purpose” Communications Shielded From FTC Probe

A Closer Look at Federal “Preemptive” Contract Terms

Supreme Court Delivers Another Qui Tam Setback To Government Contractors

Supreme Court Opinion Undermines Integrity of FCA Qui Tam Scheme (Federalist Society podcast)

Defending Battlefield Contractors

Boyle — Justice Scalia’s Gift To Government Contractors Confronted with Potential Tort Liability

Featured Articles  — Pesticides (click to read)

California Court’s Preemption Ruling Clashes with EPA No-Cancer-Warning Determination for Roundup® Labeling

9th Circuit Herbicide Decision is Stuck In the Weeds

California Can’t Usurp USEPA’s Authority Over Roundup® Labeling

Pesticide Ban Bill Ditches Science for Politics

Can FIFRA Preemption Be Revived?