USA Law and Practice Contributed by: Claudia Ray, Joseph Loy, Josh Berlowitz and Andrew (Keum Yong) Lee, Kirkland & Ellis LLP
8.2 Factual or Legal Review Issues on appeal are limited to those properly raised in the district court proceedings – claims, defences, and/or arguments not raised in the district court may be deemed “waived”, and the appeals court will ordi - narily refuse to consider them. A court of appeals defers to the district court’s factual findings unless they are clearly erroneous, which only requires the dis - trict court’s account of the evidence to be plausible in light of the record. Conclusions of law are reviewed de novo, which means the appellate court reviews the issues with no deference to the district court’s legal analysis. This also enables a court of appeals to uphold or overturn a district court’s ruling on alterna - tive legal grounds that were not considered by the district court. 9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences Civil trade secret misappropriation claims often involve conduct that overlaps not only with the federal EEA but also with state and federal statutes related to criminal mail and wire fraud, digital theft or unau - thorised access to protected computers. Trade secret owners should consider whether to reach out to the Department of Justice or state investigative agen - cies in cases of suspected or known misappropria - tion, especially since the trade secret owner is likely to have conducted a thorough investigation and will have access to unique information regarding its own trade secrets that would not be apparent to govern - ment authorities initiating their own investigation. The involvement of state or federal authorities may offer the benefit of bringing additional resources to bear, although there may be some loss of control over the investigation and the timeline of the case. For a defendant in a civil trade secret misappropria - tion action, it is important to evaluate the likelihood that a parallel criminal case could be initiated, which may affect the strategy for responding to discovery requests and could increase the potential for self- incrimination during depositions.
the US Court of Appeals for the Federal Circuit. If the ITC issues an exclusion order, an appeal cannot be filed until after a 60-day review period, during which the US President may veto the exclusion order. If the ITC does not issue an exclusion order, any adversely affected party may immediately file a notice of appeal. It is not unusual for the federal appellate process to take anywhere from several months to several years. The process involves substantive briefing by both par - ties, which itself can take several months. Circuit court appeals often involve oral arguments before a panel of appellate judges. Circuit courts have discretion in scheduling the oral argument date for an appeal. Once the briefing and oral argument have been completed, the court has discretion in the timing of issuing a deci - sion. A party that is dissatisfied with the panel’s decision may seek a rehearing of the proceeding en banc – ie, a rehearing before all (or a substantial number) of the judges of the circuit court. En banc hearings are typically reserved for novel questions of law or issues of exceptional importance and are more likely to be granted if the panel decision conflicts with those of other panels or circuits. A decision of a regional circuit court of appeals or of the Federal Circuit may be appealed by filing a petition for certiorari with the United States Supreme Court, which has broad discretion to hear appeals and gen - erally grants fewer than 100 out of the several thou - sand it receives annually. The civil court systems in each of the states consist of trial courts, intermediate courts of appeal and a highest court of appeal, which is often, but not always, called the state Supreme Court. As with the federal judicial system, the intermediate court of appeal’s decision may be appealed to the highest court of the state, which has discretion to hear the case. Even if a case begins in state court, an out-of-state defendant may be able to “remove” the case to federal court at the outset if federal jurisdictional requirements are met.
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