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Federal Circuit Nominee Brings Technical Chops, Collegial Style

March 31, 2021, 9:50 AM

Tiffany P. Cunningham, President Joe Biden’s pick for a seat on the U.S. Court of Appeals for the Federal Circuit, can have a knack for seeing what other lawyers overlook. Even when it’s the paralegals.

Working in a team of Perkins Coie LLP attorneys during a patent trial in Wisconsin in 2015, Cunningham worried about whether the paralegals involved were being overworked, according to David Jones, a former colleague who worked with her on the case.

“Trial brings out the best and the worst in people,” said Jones, who is now with Resolute Systems LLC, an alternative dispute resolution firm. “For her, it distilled her very positive and good aspects.”

If confirmed by the Senate, Cunningham would join an appeals court with a reputation for collegiality. Unlike other circuit courts, the judges all work in the same Washington, D.C., building. The court’s patent-heavy jurisdiction means it doesn’t hear many politically touchy cases that might sow division among the judges.

Cunningham would be the first Black judge on the court, the only U.S. appeals court that has never had a Black jurist, if the Senate confirms her.

‘Superb Choice’

President Joe Biden Tuesday announced his intent to nominate Cunningham to the U.S. Court of Appeals for the Federal Circuit along with 10 others for seats on other courts, including two other Black women.

Cunningham is a partner at Perkins Coie in Chicago, specializing in patent litigation. She previously worked at Kirkland & Ellis LLP and clerked for Federal Circuit Judge Timothy B. Dyk.

Cunningham’s clients have included Microsoft Corp., Intel Corp., Amazon.com Inc., BlackBerry Ltd., and General Motors Corp., according to Bloomberg Law litigation analytics.

The Federal Circuit has jurisdiction over appeals in patent cases and other suits involving the government. It is the only federal appeals court that didn’t have any judicial vacancies during the Trump administration.

Appellate litigator Ruthanne Deutsch called Cunningham “a superb choice.” Deutsch, of Deutsch Hunt PLLC in Washington, also clerked for Dyk.

Cunningham “brings to the bench stellar credentials, decades of broad-ranging and relevant litigation experience, and much-needed diversity,” Deutsch said. “What a welcome addition to the Federal Circuit.”

Cunningham graduated from Harvard Law School and earned a Bachelor of Science degree in chemical engineering from the Massachusetts Institute of Technology. That would make her one of a handful of judges on the Federal Circuit with a technical degree.

At Kirkland, Cunningham was part of a team representing BlackBerry that convinced a federal judge to overturn a nearly $150 million jury verdict against the phone maker in a patent suit over smartphone security technology.

READ MORE: Federal Circuit Judges Seek First Black Colleague as Seat Opens

Cunningham is an avid tennis player, though she did admit to losing her first match to Dyk.

“Now, in my defense, let the record reflect the judge has a significant height advantage over me,” she said in a 2015 speech when the judge’s portrait was unveiled at the court.

‘People Listen’

A. Benjamin Spencer, the dean of William & Mary Law School and Cunningham’s Harvard Law classmate, described Cunningham as level-headed, perceptive, and “fiercely intelligent.”

“When she speaks, people listen,” Spencer said. “And she always has something meaningful to say.”

Christopher Liro, a partner at Andrus Intellectual Property Law who worked with Cunningham for about a decade at Kirkland & Ellis, praised her legal skills.

“She had a thorough understanding of the law and also the intelligence to understand the facts of cases that were presented to her,” Liro said. “Both of those things will serve her well as a judge.”

Cunningham would fill the first seat on the Federal Circuit that has opened up in the last six years. Judge Evan J. Wallach will take senior status at the end of May.

To contact the reporters on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com; Matthew Bultman in New York at mbultman@correspondent.bloomberglaw.com;

To contact the editors responsible for this story: Renee Schoof at rschoof@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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